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Archive for July, 2015

Judge Alvin Hellerstein of the Southern District of New York just did the right thing in denying “expedited discovery” which would allow Malibu Media, LLC to send a subpoena to the Time Warner Cable ISP, thus preventing Malibu Media from learning the identity of the John Doe Defendant.

The copyright troll blogosphere is no doubt about to erupt with this story — in fact, the Twitter feed is already bustling with comments from Sophisticated Jane Doe (@FightCopytrolls), Raul (@Raul15340965), and other bloggers. Bottom line, a United States District Court Judge just said “no” to allowing Malibu Media’s extortion scheme to proceed.*

Judges are the gatekeepers of the law, and the reason these cases have been allowed to fester and infest our legal system is because judges [until now] have been asleep. They have blindly allowed the plaintiff copyright trolls the ability to wreak havoc on the accused downloaders by allowing the copyright trolls access to them so that they can intimidate, harass, embarrass, and threaten to deplete all of the funds of the accused defendant’s [sometimes life] savings in order to avoid the costly alternative of litigating a copyright infringement lawsuit.

For the purposes of this article, I am focusing on two points which I found to be interesting in today’s Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04369; NYSD) ruling (see Judge’s order here).

RULING 1: OBSCENE PORNOGRAPHY MIGHT NOT BE ELIGIBLE FOR COPYRIGHT PROTECTION.

This ruling (based on Judge Marrero’s Next Phase Distribution, Inc. v. John Does 1-27 (Case No. 284 F.R.D. 165, 171 (S.D.N.Y. 2012)) case is the “third rail” issue in copyright troll litigation. Do copyright rights extend to pornographic materials? What if they are considered “scenes a fair,” or scenes which contain the same “roles” and “characters” as in other films — are these considered copyrightable (keep the same story, scene, genre, and roles, but switch the actors)? Are these works considered art? And, what happens if the copyrighted film violates one or more obscenity laws — does that film still have copyright protection?

These are just questions, and to date, they are unresolved. However, the fact that Judge Hellerstein brought it up means that he is seriously considering whether this should be a basis to deny copyright infringement claims against John Doe Defendants.

Reference: See my 8/14/2012 article entitled, “How to make bittorrent cases go away once and for all…” (Reason 3)

RULING 2: MALIBU MEDIA ACCUSES A JOHN DOE DEFENDANT, BUT PROVIDES **NO EVIDENCE** THAT THE “JOHN DOE” DOWNLOADER IS THE ACCOUNT HOLDER. THUS, THERE IS **NO BASIS** FOR SUING THE ACCOUNT HOLDER OR IMPLICATING THE ACCOUNT HOLDER AS BEING THE “JOHN DOE” DOWNLOADER DEFENDANT IN THE LAWSUIT.

This has always been a blatantly simple, and yet tough argument to describe. But when you think of it, the simplicity — once it jumps out at you with the “aha!” moment — is charming and unforgettable.

In short, Malibu Media can prove that SOMEONE downloaded one or more of their titles. However, they do no prove (or even assert any evidence) to indicate that it was the account holder who downloaded the copyrighted film… so what legal basis does Malibu Media have to sue the account holder?? Judge’s answer: None.  In order to make a “prima facie” case that would convince a judge to rubber-stamp a subpoena permitting the copyright holders to force an ISP to turn over the identity of the account holder (whether or not he is the actual downloader), the copyright holder needs to provide some “link” identifying the actual downloader as being the account holder. No link is ever provided in Malibu Media’s pleadings, and thus in legal terms, the pleading “fails” and the copyright holder’s request for expedited discovery should be denied.

That’s it.  My two cents, for what it is worth.

Congratulations to District Judge Hellerstein for a brave and correct ruling on the law. Now if all of the other judges in the Eastern District of New York would fall in line with this ruling and abandon the “my court, my world, my rules” mentality, we can put an end to these cases once and for all.

Additional Reference:
Fight Copyright Trolls (SJD): Citing previous Malibu Media’s sheer abuse of court process, New York judge denies early discovery

*UPDATE (7/7, 6:30am): I am surprised that there are not more articles on this topic.  This should be all over the news for other NY judges (and judges in other federal district courts) to see.  Unfortunately, if other judges do not see [and act on] this ruling, then it gathers dust and it has little-to-no effect on future Malibu Media, LLC lawsuits. …and the scheme continues unhindered.

OTHER RECENT MALIBU MEDIA (NYSD) CASES:
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04713)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04717)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04720)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04725)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04728)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04729)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04730)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04731)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04735)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04736)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04738)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04732)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04733)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04734)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04741)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04742)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04743)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04739)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04740)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04744)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04745)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04367)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04374)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04370)
Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04377)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04368)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04369)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04371)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04373)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04378)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04380)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04381)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04382)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03130)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03135)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03137)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03138)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03143)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03144)
Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03134)

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