In a significant move, all these cases, initially scattered among many judges, were reassigned to a single judge — William Alsup — on 9/29. Three weeks later the judge allowed ex-parte discovery and set the initial case management conference, which took place today.
EFF’s intern Jack Bussell was in the courtroom and he was kind to share his notes:
Malibu Media mentioned Comcast and no other ISPs. They are currently receiving notices of representation and settlement offers. They asked for ISP compliance between December 11 and January 4. Malibu Media has not yet served any defendant. The judge had previously ordered that the last day for service would be January 7 to January 25.
Malibu Media stated that no one who they are going after would have infringed fewer than 20 works. The judge asked how Malibu Media identifies an infringer. Malibu Media responded that Excipio monitors the torrent swarm and downloads, but not uploads, the works. The judge asked how Malibu Media could be sure those persons actually infringed. Malibu Media responded that they would engage in depositions and building internet profiles. One example of a profile they offered was if the infringement stopped for a week and that coincided with a week the alleged infringer was on vacation.
Malibu Media stated that they are prepared to go to trial and meet their burden of proof. However, they acknowledged that most people settle and most settle early. They also stated they expect more pushback in “tech-savvy” Northern California.
Malibu Media has another case management conference scheduled for March 3 at 1:30, on 70 cases.
Judge Alsup said the settlement offers must be reasonable, not to multiply statutory damages “by every minute of the day,” and not to “use the federal court as a bludgeon.”
It is sad that the young Brenna resorted to telling fables to the judge: the proposition that “they are prepared to go to trial and meet their burden of proof” is disingenuous to put it mildly. Out of almost 5,000 cases filed in 13 states over the last three years, exactly zero proceeded to jury trial. We have been hearing the “we are not afraid of jury” song for years, yet every single case was either settled or dismissed. Notably, the majority of cases, where defendants seriously pushed back, ended up in walk-away settlements (no money changed hands): so much for the “impeccable evidence” and “eagerness to go to trial.” These cases are simply not designed to go to trial. Only dishonest, intellectually lazy or stupid would claim otherwise.
With all respect to Judge Alsup, “using the federal court as a bludgeon” is exactly Malibu Media’s modus operandi, and these people have been using courts as both bludgeon and money press for years.
I was going to stop here, but since Comcast is already sending out emails, and new victims are searching for “Brenna Erlbaum,” I felt compelled to share some thoughts.