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Posts Tagged ‘Malibu Media’

ID-100157775Image courtesy of @artur84 / FreeDigitalPhotos.net

Much of the bittorrent world is saddened by the leaked news reports of the recent “Bellwether” case in the Eastern District of Pennsylvania (Malibu Media v. John Does, Case No. 5:12-cv-02088) where at least one defendant is reported to be facing close to $112,500 in damages plus attorney fees for the peer-to-peer downloads he is said to have taken part in. The plaintiff attorneys, along with Keith Lipscomb and others who have a vested interest in seeing bittorrent cases against internet users succeed are drinking champagne and celebrating their victory.

It is both my professional belief and my personal conviction that copyright trolling lawsuits are wrong, and while there is nothing illegal in suing a defendant for copyright infringement, doing so in my opinion is unlawful and morally corrupt. These lawsuits are nothing more than a STAGE SHOW to permit a behind the scenes SHAKEDOWN of accused interent users, whether or not they actually participated in the accused infringement. For G-d’s sake, the “guilty” so-called “criminal” defendant merely clicked on a link, and downloaded a title that was openly shared with thousands of other downloaders. To hit that defendant with a shock lawsuit where they face $150,000 statutory damages for a video that could have been purchased for a few bucks is a disproportionate punishment for the “crime” of downloading copyrighted films. Rather, instead of suing downloaders and letting the piracy continue, why not just end the piracy problem by issuing a DMCA take down notice to the bittorrent tracker? The alternative of sitting in bittorrent swarms and employing tracking software to track the IP addresses of who is downloading to me just seems like an abusive step to what would otherwise be a simple problem of making the torrent files go away so that unsuspecting downloaders couldn’t click on the links.

It is my conviction that copyright infringement lawsuits are wrong because it is simply immoral to shake down EVERY John Doe Defendant (yes, each one) with the threat of having to defend a lawsuit in federal court unless they cough up tens of thousands of dollars for downloads that the John Doe Defendant often did not even take part in. I have personally seen copyright trolls such as Malibu Media, LLC take large sums of money from defendants who did not do the download, but who were pressured into settling simply to avoid being named in a lawsuit. It is no secret that defending a case is sometimes significantly more expensive than settling a case.

Yet even with the pending resolution of this lawsuit, accused defendants across the U.S. in their own lawsuits should understand that this ruling will not be binding on other federal courts in other federal districts. Each federal court makes their own rules as to what constitutes copyright infringement, and what evidence is required to prove a defendant guilty when the so-called infringement happens via a bittorrent download. This is our job as attorneys — to know which districts have rules in favor of bittorrent users, and to know which districts have ruled in favor of the copyright holders. No doubt, the Eastern District of Pennsylvania will now become a favored spot to sue internet users accross the U.S. for copyright infringement.

Lastly, on a personal note, this case does not change the way a lawyer handles copyright infringement cases. At least in our Cashman Law Firm, PLLC, there is no silver-bullet approach — some defendants choose to settle, and many do not. Considerations as always involve 1) whether the download actually happened and the circumstances surrounding the accused activities, 2) the accused defendant’s willingness to fight and defend a copyright infringement lawsuit, 3) the accused defendant’s aversion to risk of having their name become public knowledge in a court proceeding, and 4) the accused defendant’s financial ability to take each of the various pathways we suggest.

In sum, not all guilty defendants settle, and not all non-guilty defendants fight.  It is simply a calculation and a risk assessment that is based on the client’s desires, the federal district in which the lawsuit is filed (taking into consideration past bittorrent cases filed in that jurisdiction), the judge who assigned to the case (taking into consideration his past rulings), and the plaintiff attorney (or more frequently, the local counsel’s) proclivity towards naming, serving, and taking defendants to trial balanced with their willingness to negotiate an amicable settlement should we decide to go that route.

Bittorrent cases [in their current form] have now been around for three (3) years, and now we have a verdict where a case has been taken to trial — by Malibu Media, LLC surprisingly enough.  When we started, there were no cases taken to trial, and now there is one.  Before the appearance in 2010 of the bittorrent cases, all we had to go on were the old Napster and Grokster cases, combined with the various lawsuits filed by the RIAA / MPAA and miscellaneous copyright infringement files dealing with the internet. Up until now we have been developing case law surrounding peer-to-peer downloads as each case matures. Now we are starting to get some clarity as to the law surrounding bittorrent use.

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Malibu Media, LLC has been filing lawsuits across the U.S. with a fervor with one change — most of them appear to be “Single John Doe” lawsuits against defendants whom they believe have deep pockets.

In other words, it appears that Malibu is looking at the geolocation data of the various IP addresses of the so-called downloaders, and they are going after defendants who live in towns which have high value residential homes. I know this because based on the individuals who call our office, a disproportionate number of them have commented that they have multi-million dollar estates, and they were wondering whether it was ethical to target high value individuals in their copyright infringement lawsuits.

To make matters worse, Malibu Media, LLC appears to have incentivized their local counsel with financial rewards for bringing in higher settlements. In the olden days, I could have called one of their contacts directly, and within a few phone calls, I knew what kind of settlement a defendant could get based on how many “titles” or alleged instances of infringement they were accused of downloading. From there, the client and I would decide whether it made more financial sense to fight the case by waiting to be named and filing an answer in court, or whether it made more financial sense to settle the case. Malibu has complicated this process in order to provide the appearance of legitimacy for the courts. Now, they are having their local counsel negotiate the settlements themselves. This would be okay, but it is my experience that local counsel are asking for higher numbers than I know Malibu would have settled for just a few months ago. “The old settlement numbers you used to have with Malibu are no longer in effect,” one local counsel told me as she pushed for higher numbers. “We are doing this ourselves now.”

To make matters worse, when Malibu Media, LLC identifies a downloader by his IP address, they track that IP address and monitor that defendant to see what other bittorrent files that defendant is downloading (wiretap?). They continue to monitor that defendant downloading non-Malibu Media titles such as “The Walking Dead,” “Homeland,” “Breaking Bad,” often creating a list multiple pages long of “other” infringing activities that defendant has taken part in. Their logic is that because a particular defendant downloaded those other titles, he is a “serial downloader” and thus it is more likely that he downloaded their titles as well. A number of us attorneys have explained to their local counsels’ deaf ears that just because a particular IP address downloaded a number of bittorrent titles does not mean that the accused defendant is that downloader. However, even the best attorney’s understanding of the law can be clouded when money influences that attorney’s understanding of it.

On a positive note, in just a few weeks, we have seen judges rule that the “other” BitTorrent activity listed in their complaints [for works not owned by Malibu Media] is inadmissible under the Federal Rules of Evidence (“FRE”), specifically Rule 404 on “Character Evidence.” The reason for this is because “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” In other words, proving that a particular defendant is a “serial downloader” is not admissible to prove that on a particular date and time, that defendant downloaded Malibu Media’s copyrighted titles. Shame on Malibu attorneys for not knowing this.

Further, judges have ruled that introducing evidence of “other” downloads is not relevant and is actually prejudicial to the defendant, and thus that so-called evidence is not admissible to prove that the defendant downloaded Malibu Media, LLC’s titles. As one example, Judge Stephen Crocker has frozen all of Malibu Media, LLC’s cases in the Western District of Wisconsin for this very purpose (link).

In sum, messing up on the Federal Rules of Evidence and doing so on each of their “Single Doe” upper-class cases was a big mistake which they might not be able to undo.  And also on a positive note, because they have filed so many “Single Doe” cases across the country, judges across the U.S. are looking deeper into their tactics and their evidence of infringement.  See @Ddragon229’s article on the FCT website, “Winds of change begin to blow on Malibu Media” for details on the character evidence issue.

Despite this, Malibu Media, LLC continues to file lawsuits across the U.S. in alarming numbers, and in each case, they continue to file this prejudicial information of “other” downloads as their “Exhibit C” in each case. A snippet of cases filed in just the last few weeks is pasted below:

Cases filed by Chris Fiore in the Pennsylvania Eastern District:
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02858)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02859)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02867)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02868)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02854-JP)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02855-MMB)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02856-JD)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02857-SD)
Malibu Media LLC v. John Doe (Case No.2:13-cv-02863-PD)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02864-HB)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02765-MSG)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02766-MSG)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02767-WY)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02768-PD
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02769-RB)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02770-CMR)

Cases filed by Mary Schulz of Schulz Law PC in the Illinois Northern District:
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03726)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03699)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03700)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03703)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03704)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03705)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03706)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03707)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03710)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03711)

Cased filed by Paul J. Nicoletti of Nicoletti & Associates PLLC inn the Michigan Eastern District:
Malibu Media LLC v. John Doe subscriber assigned IP address 71.238.205.92 (Case No. 4:13-cv-12231-MAG-MAR)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.42.185.159 (Case No. 2:13-cv-12210-RHC-MJH)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.4.96 (Case No. 2:13-cv-12213-SFC-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.84.236 (Case No. 2:13-cv-12214-AJT-MKM)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.60.140.87 (Case No. 2:13-cv-12216-PDB-RSW)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.62.41.133 (Case No. 2:13-cv-12217-VAR-RSW)
Malibu Media LLC v. John Doe subscriber assigned IP address 69.14.181.108 (Case No. 2:13-cv-12218-NGE-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 69.246.89.172 (Case No. 2:13-cv-12220-AJT-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 67.149.158.6 (Case No. 2:13-cv-12197-GAD-PJK)
Malibu Media LLC v. John Doe subscriber assigned IP address 67.149.89.224 (Case No. 2:13-cv-12198-PDB-MKM)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.40.123.7 (Case No. 2:13-cv-12200-GER-MKM)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.40.46.12 (Case No. 2:13-cv-12201-DPH-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.35.2 (Case No. 2:13-cv-12202-PDB-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.170.197 (Case No. 2:13-cv-12204-GAD-RSW)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.19.221 (Case No. 2:13-cv-12206-DPH-LJM)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.86.4 (Case No. 2:13-cv-12208-MOB-RSW)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.42.172.154 (Case No. 2:13-cv-12209-SJM-MKM)

Cases filed by Paul J. Nicoletti of Nicoletti & Associates PLLC in the Indiana Northern District:
Malibu Media LLC v. John Doe 12 (Case No. 1:13-cv-00166-PPS-RBC)
Malibu Media LLC v. John Doe 5 (Case No. 1:13-cv-00164-PPS-RBC)
Malibu Media LLC v. John Doe 9 (Case No. 1:13-cv-00165-PPS-RBC)

PERSONAL NOTE: Even with all these cases, I have only listed 46 cases having 46 defendants. With the hundreds of filings, it becomes impossible to track and report on each case. The more I look at each of these cases, the more I feel as if they have succeeded in preventing attorneys like myself from tracking and reporting on each of their hundreds of cases. Obviously I am still here, and I am still reporting on these cases. My list of cases to track has just gotten a bit larger.

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Malibu Media, LLC has been one of the worst offenders in these copyright trolling cases. Instead of waiting for a full download to be complete, it has been reported to me that IMMEDIATELY UPON CLICKING ON THE BITTORRENT LINK (or in other words, as soon as an internet user “joins” the bittorrent swarm, EVEN IF NOT A BYTE OF DATA HAS BEEN DOWNLOADED), ***WHAM!*** Downloaders are tagged and are sued for copyright infringement.

To make matters worse, Malbu Media, LLC is known to sue based on what is called a “Siterip” (essentially meaning that someone ripped a large set of videos from their http://www.x-art.com paid website, and posted a huge number of them into one bittorrent file). We won’t ask 1) if they’ve known about the Siterips, why they have not filed DMCA takedown notices for those Siterips, and 2) whether they were involved in the “leaking” of the various siterips (in my opinion, it is too convenient to have “Siterip #1… Siterip #2… Sitrip #12…”). In sum, clicking on the wrong torrent file link with Malibu Media, LLC as your plaintiff production company can get you sued for 25+ titles, or “hits” as they like to call them.

Now what makes these cases particularly offensive is that unlike the traditional copyright trolls who will only ask for $3,400 and settle for whatever they can get, Malibu Media, LLC will likely ask for at least a $10,000 settlement from each defendant. You see this by looking at the case names below that there appears to be only ONE defendant in each case. The reason for this is that their attorneys will tell the defendant that he’s the only one in the case, and that they’ll amend the complaint, “name” him as a defendant, and serve him with process if he doesn’t settle.

While I am against the concept of suing downloaders for the piracy of a film, I want to note that filing ONE LAWSUIT FOR ONE DEFENDANT is the proper way to do these lawsuits (and the courts will be much more forgiving based on the many filing fees paid to the court, especially since the court will not need to deal with rote procedural issues that have plagued these cases since their inception [e.g., improper jurisdiction, improper joinder]). In sum, in a case such as this one, a defendant must answer for himself the simple questions of 1) can I fight this (the answer is likely yes considering the “snapshot” methods in which they track the IP addresses relating to the downloads, along with the likely-present issues of late copyright filing dates), and 2) how would I like to proceed based on what I know about their evidence against me (based on my own network router setup and/or downloading habits)? X-art films have a very specific style and theme to them, and they attract a very specific genre of married men, one step up from those who enjoy classy soft porn. On top of this, the Keith Lipscomb IP enforcement company representing Malibu Media, LLC as their client does research on most defendants (note their mention below as “Dr. John Doe” in one of their cases to signal to the defendant that they know he has financial resources to pay a large settlement). For these reasons, it is often a simple question of EVIDENCE in determining whether to move forward with what is usually a very good defense, or whether to use that evidence we gather in your favor while attempting to negotiate a deeply discounted settlement on your behalf.

Up front, the local counsel you will read about below — Mary Schultz, Paul Nicoletti, Jon Hoppe, Leemore Kushner, Jason Kotzker, and Patrick Cerillo — are merely paid to file and fight these cases according to the instruction of Keith Lipscomb. They are merely cogs in Lipscomb’s IP enforcement machine, and in my opinion, there is no reason for anyone to be talking to them since they likely do not have authority to do anything but gather evidence, argue the cases and move them forward.

MARCH 2013 – 19 NEW CASES

Illinois Central District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-01096)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01099)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01100)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01101)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01102)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02058)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02059)

Wisconsin Eastern District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00226)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00236)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00238)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00239)

Indiana Northern District Court
Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media LLC v. Joe Doe (Case No. 2:13-cv-00085)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00162)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00163)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00164)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00165)

District Of Columbia District Court
Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00268)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00269)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00270)

FEBRUARY 2013 – 103 NEW CASES

New Jersey District Court
Patrick J. Cerillo – Attorney at Law

Malibu Media LLC v. John Doe (Case No. 2:13-cv-01179)
Malibu Media, LLC v. John Doe subscriber assigned IP address 68.32.191.163 (Case No. 2:13-cv-01176)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.142.2.132 (Case No. 2:13-cv-01178)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01180)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00214)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-01159)
Malibu Media, LLC v. John Doe subscriber assigned IP address 108.35.11.132 (Case No. 2:13-cv-01104)
Malibu Media, LLC v. John Doe subscriber assigned IP address 173.70.130.138 ( 2:13-cv-01106)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01105)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00971)
Malibu Media, LLC v. John Doe subscriber assigned IP address 173.54.255.28 (Case No. 2:13-cv-00972)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00973)

Wisconsin Eastern District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media LLC v. John Doe (Case No. 2:13-cv-00217)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00213)

California Southern District Court
Leemore L Kushner of Kushner Law Group

Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00433)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00434)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00435)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00436)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00437)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00438)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00440)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00442)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00443)

Florida Middle District Court
M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL

Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00467)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00468)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00469)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00470)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00471)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00472)

Florida Southern District Court
M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL

Malibu Media, LLC v. John Doe (Case No. 9:13-cv-80178)

Colorado District Court
Jason Aaron Kotzker of Kotzker Law Group

Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)
Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)
Malibu Media, LLC v. John Doe subscriber assigned IP address 63.225.246.31 (Case No. 1:13-cv-00423)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.212.197.251 (Case No. 1:13-cv-00425)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)

Maryland District Court
Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00352)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00353)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00354)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00356)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00357)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00358)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00359)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00363)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00366)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00350)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00351)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00355)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00360)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00361)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00362)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00364)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00365)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00506)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00507)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00508)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00509)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00510)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00511)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00517)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00518)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00512)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00513)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00514)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00515)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00516)

Illinois Central District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01072)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01073)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-02043)

Illinois Northern District Court
Mary Katherine Schulz of Schulz Law Firm, PC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00863)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00878)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00880)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00883)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00884)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00885)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00888)
Malibu Media, LLC v. Dr John Doe (Case No. 1:13-cv-00891)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00913)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00915)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00934)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00935)

Michigan Western District Court
Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00158)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00162)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00163)

Indiana Southern District Court
Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media LLC v. John Doe (Case No. 1:13-cv-00201)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00203)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00204)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00206)

Indiana Northern District Court
Paul Nicoletti of Nicoletti & Associates PLLC

Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00055)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00071)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00072)

Colorado District Court
Jason A. Kotzker of Kotzker Law Group
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.234.104 (Case No. 1:13-cv-00307)
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.250.8 (Case No. 1:13-cv-00308)
Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.161.234 (Case No. 1:13-cv-00309)
Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.34.85 (Case No. 1:13-cv-00310)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00311)
Malibu Media, LLC v. John Doe subscriber assigned IP address 67.176.40.151 (Case No. 1:13-cv-00316)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.71.30.155 (Case No. 1:13-cv-00317)
Malibu Media, LLC v. John Doe subscriber assigned IP address 98.245.154.142(Case No. 1:13-cv-00318)

P.S. – For those of us who follow these cases as enthusiasts, did you notice that there was no mention of Chris Fiore in this long list of cases? Perhaps he still has his hands full with the bellwether case.

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I read Judge Facciola’s rulings all day long.  It appears to me that in his eyes, internet users are copyright infringers. The internet is a place of crime and deceit. And, copyright holders – even when they are pornography production companies – deserve to shake down and harm internet users who prey on their copyrighted materials.

He has been happy for months that people are being extorted, but now he is no longer happy because people are fighting back. No doubt he has “seen the light” shining forth from the Indiana Southern District Court, and he wants to prove that the internet users are guilty and that they deserve to be punished.

With all this narrative, I am painting a prophetic picture of what I expect the Malibu Media, LLC v. John Does 1-7 (Case No. 1:12-cv-01119 [12-1119 (EGS/JMF)]) DC case to look like. It is a grim picture, but here it goes.

EVERY DEFENDANT WILL BE NAMED IN THE CASE.

Watch these Indiana dockets…

Malibu Media, LLC v. John Does 1-29 (INSD; Case No. 1:12-cv-00845)

10/15/2012 46 Summons Issued as to DERICK BROOKS, DAN COROIAN, JEREMY COTTON, KEVIN DEMPSEY, CONNIE FELONGCO, NEVILLE FERNANDES, JAY GARRETT, JIM GENDRON, CLARISSA HENDERSHOT, ANDREW LEIGHTNER, SIWEI LI, CHRIS MINOR, DANIEL PITTMAN, K.P., KENNETH REESE, JERRY RICHEY, CARL RUDY, LUCIAN SAVULESCU, LUCAS SHULTZ, TERESA STEPHENSON. (JD) (Entered: 10/15/2012)
10/11/2012 45 Proposed Summons submitted for issuance by the clerk as to TERESA STEPHENSON. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 44 Proposed Summons submitted for issuance by the clerk as to SIWEI LI. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 43 Proposed Summons submitted for issuance by the clerk as to NEVILLE FERNANDES. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 42 Proposed Summons submitted for issuance by the clerk as to LUCIAN SAVULESCU. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 41 Proposed Summons submitted for issuance by the clerk as to LUCAS SHULTZ. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 40 Proposed Summons submitted for issuance by the clerk as to K.P. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 39 Proposed Summons submitted for issuance by the clerk as to KEVIN DEMPSEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 38 Proposed Summons submitted for issuance by the clerk as to KENNETH REESE. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 37 Proposed Summons submitted for issuance by the clerk as to JIM GENDRON. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 36 Proposed Summons submitted for issuance by the clerk as to JERRY RICHEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 35 Proposed Summons submitted for issuance by the clerk as to JEREMY COTTON. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 34 Proposed Summons submitted for issuance by the clerk as to JAY GARRETT. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 33 Proposed Summons submitted for issuance by the clerk as to DERICK BROOKS. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 32 Proposed Summons submitted for issuance by the clerk as to DANIEL PITTMAN. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 31 Proposed Summons submitted for issuance by the clerk as to DAN COROIAN. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 30 Proposed Summons submitted for issuance by the clerk as to CONNIE FELONGCO. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 29 Proposed Summons submitted for issuance by the clerk as to CLARISSA HENDERSHOT. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 28 Proposed Summons submitted for issuance by the clerk as to CHRIS MINOR. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 27 Proposed Summons submitted for issuance by the clerk as to CARL RUDY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 26 Proposed Summons submitted for issuance by the clerk as to ANDREW LEIGHTNER. (Nicoletti, Paul) (Entered: 10/11/2012)
9/27/2012 25 AMENDED COMPLAINT against DERICK BROOKS, DAN COROIAN, JEREMY COTTON, KEVIN DEMPSEY, JOHN DOE #14, JOHN DOE #16, JOHN DOE #17, JOHN DOE #20, JOHN DOE #23, JOHN DOE #24, JOHN DOE #29, CONNIE FELONGCO, NEVILLE FERNANDES, JAY GARRETT, JIM GENDRON, CLARISSA HENDERSHOT, ANDREW LEIGHTNER, SIWEI LI, CHRIS MINOR, DANIEL PITTMAN, K.P., KENNETH REESE, JERRY RICHEY, CARL RUDY, LUCIAN SAVULESCU, LUCAS SHULTZ, TERESA STEPHENSON, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – IP Address List, # 2 Exhibit B – Copyright Website Screen Shot, # 3 Exhibit C – BitTorrent Vocabulary)(Nicoletti, Paul) (Entered: 09/27/2012)

Malibu Media, LLC v. John Does 1-7 (INSD; 1:12-cv-00842)

10/15/2012 24 Summons Issued as to JAMES HELFERICH, JEREMIAH MCKINNEY, STEPHEN MCSWEENEY, ERNEST NURULLAEVA, CHARLIE TOLLEY. (JD) (Entered: 10/15/2012)
10/11/2012 23 Proposed Summons submitted for issuance by the clerk as to STEPHEN MCSWEENEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 22 Proposed Summons submitted for issuance by the clerk as to JEREMIAH MCKINNEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 21 Proposed Summons submitted for issuance by the clerk as to JAMES HELFERICH. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 20 Proposed Summons submitted for issuance by the clerk as to ERNEST NURULLAEVA. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 19 Proposed Summons submitted for issuance by the clerk as to CHARLIE TOLLEY. (Nicoletti, Paul) (Entered: 10/11/2012)
10/3/2012 18 AMENDED COMPLAINT against JOHN DOES 1-7, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – IP Address List, # 2 Exhibit B – Copyright Website Screen Shots, # 3 Exhibit C – Title List, # 4 Exhibit D – BitTorrent Vocabulary)(Nicoletti, Paul) (Entered: 10/03/2012)

Malibu Media, LLC v. John Does 1-23 (INSD; Case No. 1:12-cv-00841)

10/12/2012 38 Summons Issued as to GIANCARLO DI MIZIO JR, KRISTINE EIKENBERG, CAMERON GAFF, R.M., SEAN MANGYIK, ANDREW MCCOY, TOBY REEVES, HAOJIE WANG, DANIEL WATT. (CKM) (Entered: 10/12/2012)
10/11/2012 37 Proposed Summons submitted for issuance by the clerk as to TOBY REEVES. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 36 Proposed Summons submitted for issuance by the clerk as to SEAN MANGYIK. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 35 Proposed Summons submitted for issuance by the clerk as to R.M. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 34 Proposed Summons submitted for issuance by the clerk as to KRISTINE EIKENBERG. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 33 Proposed Summons submitted for issuance by the clerk as to HAOJIE WANG. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 32 Proposed Summons submitted for issuance by the clerk as to GIANCARLO DI MIZIO JR. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 31 Proposed Summons submitted for issuance by the clerk as to DANIEL WATT. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 30 Proposed Summons submitted for issuance by the clerk as to CAMERON GAFF. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 29 Proposed Summons submitted for issuance by the clerk as to ANDREW MCCOY. (Nicoletti, Paul) (Entered: 10/11/2012)
9/27/2012 28 SECOND AMENDED COMPLAINT against JOHN DOES 1-23, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – IP Address List, # 2 Exhibit B – Copyright Website Screen Shots, # 3 Exhibit C – Title List, # 4 Exhibit D – BitTorrent Vocabulary)(Nicoletti, Paul) Modified on 10/10/2012 (PGS). (Entered: 09/27/2012)

Malibu Media, LLC v. John Does 1-8 (INSD; Case No. 1:12-cv-00840)

10/18/2012 30 Summons Issued as to RYAN OURS. (PG) (Entered: 10/18/2012)
10/18/2012 29 Summons Issued as to PAUL ALLOR. (PG) (Entered: 10/18/2012)
10/18/2012 28 Summons Issued as to JAMES DUMAS. (PG) (Entered: 10/18/2012)
10/18/2012 27 Summons Issued as to HECTOR HERNANDEZ. (PG) (Entered: 10/18/2012)
10/18/2012 26 Summons Issued as to BRIAN LACEY. (PG) (Entered: 10/18/2012)
10/17/2012 25 ORDER granting Pltf’s 24 Motion for Extension of Time to effectuate service on Defts to 11/15/2012. Signed by Magistrate Judge Mark J. Dinsmore on 10/17/2012. (SWM) (Entered: 10/18/2012)
10/16/2012 24 First MOTION for Extension of Time to to Effectuate Service on Defendants , filed by Plaintiff MALIBU MEDIA, LLC. (Attachments: # 1 Text of Proposed Order)(Nicoletti, Paul) (Entered: 10/16/2012)
10/11/2012 22 Proposed Summons submitted for issuance by the clerk as to RYAN OURS. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 21 Proposed Summons submitted for issuance by the clerk as to PAUL ALLOR. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 20 Proposed Summons submitted for issuance by the clerk as to JAMES DUMAS. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 19 Proposed Summons submitted for issuance by the clerk as to HECTOR HERNANDEZ. (Nicoletti, Paul) (Entered: 10/11/2012)
10/11/2012 18 Proposed Summons submitted for issuance by the clerk as to BRIAN LACEY. (Nicoletti, Paul) (Entered: 10/11/2012)
9/26/2012 14 AMENDED COMPLAINT against JOHN DOES 1-8, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – I.P Address List, # 2 Exhibit B – Copyright Website Screen Shot, # 3 Exhibit C – BitTorrent Vocabulary)(Nicoletti, Paul) (Entered: 09/26/2012)

And a younger case… Can you guess what will happen next?

Malibu Media LLC v. John Does 1-9 (INSD; Case No. 1:12-cv-01115)

10/18/2012 23 AMENDED COMPLAINT against KEVIN ETTER, NICHOLAS SHELTON, AARON REYES, HO YEUNG, DAVID WYATT, LEAH JUSTICE, filed by MALIBU MEDIA, LLC. (Attachments: # 1 Exhibit A – IP Address List, # 2 Exhibit B – Copyright Website Screen Shots, # 3 Exhibit C – Title List, # 4 Exhibit D – BitTorrent Vocabulary)(Nicoletti, Paul) (Entered: 10/18/2012)

This is obviously no doubt upsetting for the named defendants, but it has been explained to me that the logic of the Indiana courts is that they do not want to allow Paul Nicoletti to run the typical copyright troll extortion scheme of “unless you settle with us, we will name you in the lawsuit.” Rather, the court has asked the plaintiffs to name the defendants outright so that they could properly defend themselves rather than playing the “motion to quash” game that happens in all the other courts.

I also want to point out that now the burden is on Malibu Media, LLC and Paul Nicoletti to make DAMN SURE that the defendants they sue actually did the downloading.

I must note that this is not the case with Judge Facciola in DC. It has been explained to me that he is hell bent on punishing defendants rather than stopping the extortion scheme that has been going on there unhindered for over two years now.

On a personal note, this is obviously not the scenario I would like to see happen, but I do think the DC case will end up looking exactly like these Indiana cases. Thus, I wanted defendants to be prepared for this because as soon as you are named and served, you have a certain number of days to respond and file your answer. There are obviously some maneuvers we can do to stop the clock, but you’ll be under the gun on this one so be prepared to act as soon as you’re served. It looks like this is going to happen.

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“GOING TO TRIAL: BAD!”

I was watching the DC Malibu Media, LLC case which was assigned to Judge Facciola, and on 9/25, there was an order which concerned me. In view of PA Judge Baylson’s order forcing Malibu Media to name and serve defendants, or else, this order became relevant.

We all know that Judge Facciola is against the internet downloader. He is also stubbornly in favor of copyright trolls, pornography production companies, and the protection of copyright rights for obscene materials. This is why his order in the Malibu Media, LLC v. John Does 1-7 (Case No. 1:12-cv-01119 [12-1119 (EGS/JMF)]) case in DC was controversial.

In stark opposition to my “GOING TO TRIAL: GOOD!” article that I posted just moments ago, it appears as if Judge Facciola has figured out a way to TRAP internet users into being named as defendants, and to embarrass them and force them to fight their cases.

In Facciola’s 9/25 order, the judge allowed Malibu Media, LLC to send subpoena notices to the ISPs. He allowed them to even get all they wanted regarding the contact information of the suspected John Doe Defendants. Here’s the catch — Facciola ordered that MALIBU MEDIA, LLC MAY NOT SETTLE ANY CASES WITH JOHN DOE DEFENDANTS BEFORE NAMING THEM FIRST.

“4. Plaintiff may not engage in any settlement discussions with any persons identified by the ISPs in response to the subpoenas.”

We all know that Malibu Media sues people in the states in which they live, and thus personal jurisdiction and venue is usually proper in their cases. In addition, we know that Malibu Media’s business model is to call defendants and scare them into settling for thousands of dollars at a time. We also know that the lawsuits implicate the defendants for ONE film only, but when defendants call up to settle, they are forced to settle ALL ALLEGED CLAIMS AGAINST THEM (which can sometimes be 15 “hits”, 25 “hits” — or more recently, I’m hearing numbers in the 40’s — which can amount to settlements in the TENS OF THOUSANDS). This means that even if a defendant SUCCEEDS in fighting their case, Malibu Media, LLC can still turn around and sue them again, and again, and again (bad odds for a downloader interested in x-art’s content).

So now, settlement is NOT an option for Malibu, as their hands are tied by the judge’s order (and whether they’ll comply on the back-end is a dangerous proposition that could get them in trouble if a Doe who settles reports that settlement to the court). Or will it with Judge Facciola as the judge?

Here is my advise with this case. For the putative defendants, your option is not to settle your case, but simply to make yourself someone the plaintiffs do not want to name and serve. In other words, have your attorney contact Malibu Media with evidence of your innocence. I suspect that if we persuade them that you have a good defense, they will decide to name and serve OTHER DEFENDANTS (and not you).

So in sum, I expect that Judge Facciola will have his way, and John Doe Defendants will necessarily have their reputations tarnished by being named in a pornography lawsuit. To those defendants who ARE named, my only advice is to have your attorney put up a good fight. Quite frankly, at this point, some of these copyright trolls deserve one.

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Malibu Media, LLC has been crashing and burning lately.

“GOING TO TRIAL: GOOD!”

In the Eastern District of Pennsylvania, a judge has forced plaintiff attorney Chris Fiore’s hand by forcing Malibu Media, LLC to move out of the “John Doe” phase and into the trial phase. (Malibu Media, LLC v. John Does 1-14, Case No. 2:12-cv-02084, Judge Baylson)

The funny part about this case is that Fiore appears to NOT want to go to trial. Looking at the docket, it looks as if he was trying to maneuver his way out of trial by not telling the ISPs that the judge has ordered deadlines forcing him to name and serve certain John Doe Defendants. The logic is that if the ISPs did not hand over the subscriber’s contact information, Malibu Media would be UNABLE to name and serve the defendants, and the case would be dismissed [to Malibu's relief].

The judge apparently received word about this and he was not amused, especially because failing to notify the ISPs would be a direct violation of the judge’s 10/3 order forcing Fiore to do so. As a result, yesterday (10/17), Judge Baylson ordered that Malibu Media file a memo and certificate under oath as to whether he informed the ISPs of the court’s intentions to move forward. Should it surface that Malibu Media did not inform the ISPs of the court’s order, or, should Malibu Media fail to name and serve defendants within the judge’s timeline, the plaintiff may face stiff sanctions.

I have a difficult time not being amused by what I am reading in this case. All these months, plaintiff attorneys have screamed, “if you do not settle our claims against you, we will name you as a defendant in a case against you.” Yet here is a judge who is giving Malibu Media the opportunity to move forward against defendants in an expedited fashion, and I cannot help but to think they are squirming.

A “bellwether trial” is a trial which the court employs to determine the merits of the plaintiff’s claim against certain defendants. The logic is that if the plaintiff provides good evidence of copyright infringement, the court will allow that plaintiff the opportunity to sue many other John Doe Defendants in many other cases. However, if the court finds that there is some hidden weakness in Malibu Media’s bittorrent litigation / copyright trolling cases in general (e.g., if there is an insufficient amount of evidence collected when the so-called “infringer” downloaded Malibu Media’s content via bittorrent), then this trial will serve to kill off all of the other Malibu Media, LLC cases in the Eastern District of Pennsylvania.

STATUS UPDATE: Malibu Media, LLC has until OCTOBER 26TH, 2012 to name and serve the defendants. On NOVEMBER 1ST, 2012, 2:30 pm, there will be a recorded telephone conference (the results of which will be made public).

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“He Loves Me, He Loves Me Not.”

It appears as if us attorneys are playing a “he loves me, he loves me not” game watching Judge Klausner’s orders in the Malibu Media, LLC v. John Does 1-10 (Case No. 2:12-cv-03615) case in the California Central District Court (where copyright troll Leemore Kushner’s bittorrent swarm scam cases are). Quite frankly, it looks to me as if he is doing one of two things, but it is unclear which game he is playing.

SCENARIO 1: “HE LOVES ME NOT”

In the first scenario, Judge Klausner is against the John Does, and he is very aware of the case law that has been flourishing around the federal district courts in so many states cutting down the bittorrent lawsuits at the knees of the copyright trolls. The problem is that Judge Klausner hates a copyright infringer.

So as we discussed in the “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article on 7/12/2012, the judge consolidated all of the Malibu Media, LLC cases under his control, his decision to separate out JURISDICTION and JOINDER issues was deliberate. In his charade where he ordered Leemore Kushner (the copyright troll) to explain to the court why the cases should not be dismissed for LACK OF PERSONAL JURISDICTION — we know Kushner sues California defendants in the California courts, so jurisdiction is likely proper — the Judge was pretending to cause her grief, but in secret, he was winking at her and telling her he supports her cause.

This order was EASY to comply with, and in just a few minutes time, Leemore Kushner filed the proper response explaining why jurisdiction was correct.

UPDATE: *AS OF THIS AFTERNOON,* Judge Klausner graciously accepted her explanation, and in doing so, he established case law indicating that “it is proper to sue a bittorrent defendant where the bittorrent defendant resides.” Now for joinder.

Now that Judge Klausner enjoyed Kushner’s explanation regarding PERSONAL JURISDICTION, today he asked her to explain to the court the JOINDER issue. Following this line of thought, she’ll provide him the usual “blah blah” swarm nonsense, and he’ll accept her explanation for that too. At that point, he’ll grant her motion for early discovery, and he’ll let the ISPs hand over subscriber information for the many defendants who are implicated in Leemore Kushner’s cases.

While Kushner would no doubt be thrilled at this victory, Judge Klausner will have also scored a victory in his own “judgy kind of way.” If he accepts her explanation regarding joinder, he will have effectively ruled that“in California, suing defendants together in a bittorrent swarm is PROPER, even when the defendants never knew each other, and none of the defendants uploaded or downloaded to the other (because the dates and times of the alleged infringement would be weeks if not months apart).” In other words, NO MORE SEVERANCE AND DISMISSALS for improper joinder. Now wouldn’t that be a nightmare?!? Watch out for Judge Klausner. EFF, consider an amicus brief here, because HE IS SEPARATING OUT THE ISSUES.

SCENARIO 2: “HE LOVES ME.” <– the MORE LIKELY SCENARIO.

As we discussed in our “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article, Judge Klausner made a silly mistake and sent an ORDER TO SHOW CAUSE why the cases should not be dismissed for lack of PERSONAL JURISDICTION. Pretending for a second that he read my article (I highly doubt this is the case) where I chided him for his error in confusing PERSONAL JURSIDICTION and JOINDER, he accepted Leemore Kushner’s explanation of why PERSONAL JURISDICTION is proper.

Now, instead of saying, “okay, proceed with the case,” behind the scenes, Judge Klausner is getting ready to kill each and every one of the cases with one stroke of the pen. So, instead of admitting to his mistake (“who cares anyway,” he might think — “I just cost the evil troll some time and money.”), after being satisfied with Kushner’s explanation, he said, “Oh yeah, and by the way — I’m accepting your personal jurisdiction argument, but I’m not letting you subpoena the ISPs until you explain to me that JOINDER is proper. Why would you sue defendants together in the same lawsuit who were NOT INVOLVED IN THE SAME TRANSACTION OR OCCURRENCE? Silly troll.” In other words, he’s covering his oversight by making Leemore Kushner (the troll) jump through hoops, whereas in the end, he’ll take one look at her boilerplate answer as to why all the defendants belong in the same lawsuit and he’ll LAUGH HER OUT OF COURT. Severance and dismissal of each of the cases. “Go sue them individually and pay the $350 filing fee for each Doe,” he’ll say. In other words, Judge Klausner could be on your side.

MY OPINION: I wrote this quick article because at this point, it is unclear what will happen, and since many people are calling into my office asking my opinion about this particular case (and the California consolidations in general), I wanted to be explicitly clear that IT CAN GO EITHER WAY. We can only wait and see what he’ll do, and based on that, you, the putative defendant, will learn whether Leemore Kushner or the Lipscomb gang will be calling you to solicit a settlement in the near future. There is really nothing else here. He is either for the trolls, or he is for the downloaders. He can bend the law in whatever direction his judicial activist mind would like to.

So what’s you’re thought? Is it “he loves me?” or “he loves me not?”

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