Even if this IPaddress is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright.|
|From Judge Ungaro’s Order|
- Judge Federico Moreno ruled that there is no “good cause” to deviate from Rule 26(d), thus denying early discovery in Malibu Media v. John Doe, 14-cv-20216;
- Magistrate Frank Lynch also denied Lipscomb’s motion for ex-parte discovery citing untimely copyright registrations in Malibu Media v. John Doe, 13-cv-14458;
- Magistrate Andrea Simonton recommended to sanction Lipscomb in Malibu Media v. Pelizzo, 12-cv-22768;
- Judge Ursula Ungaro denied Lipscomb’s routine motion for extension of time to serve the defendant and closed Malibu Media v. John Doe, 13-cv-23714.
In the latter case, on 10/29/2013 the judge sua sponte ordered to show cause why the Court may reasonably rely upon the Malibu’s usage of geolocation to establish the identity of the defendant (and also establish that the defendant may be found within this district).
Lipscomb responded on 11/12/2013, and apparently satisfied Magistrate Torres, to whom Judge Ungaro referred the case. As already mentioned, the case was closed not because of the OSC outcome, but for failure to serve the defendant.
Fast forward to March 2014. On 3/5/2014 in Malibu Media v Doe (FLSD 14-cv-20213), an identical order to show cause was issued by Judge Ursula Ungaro. Lipscomb responded, but this time he was not so lucky: the judge was not satisfied with Lipscomb’s explanations and on 3/20/2014 ordered that
[…] Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright. The Court finds that Plaintiff has not established good cause for the Court to reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant. The Court also finds that Plaintiff has not established good cause as to why this action should not be dismissed for improper venue.
The case was closed:
This is not all: on 3/20 Judge Ungaro issued identical orders to show cause in two other Malibu/Lipscomb’s cases assigned to her, 14-cv-60681 and 14-cv-60682 (filed just two days before, on 3/18/2014). Well, the outcome is predictable.
Judges rule according to the law, no doubt. Yet the law is not math, there is always a window in which a case can be ruled one way or the other, especially in civil cases. By default, a lawyer, the “officer of the court,” is a trusted party, and a judge often makes decisions taking such lawyer at his word.
But if a lawyer clogs understaffed courts with lawsuits that have nothing to do with advancing justice but rather with stuffing his pockets, sooner or later the pendulum moves in the opposite direction. Losing reputation is a one-way street, and I feel that it is what we are currently witnessing in FLSD. Judges are sick and tired of Lipscomb, and if two years ago he could forge a signature and get away with it, today his extortionate activity in his own backyard is about to end.
No doubt other states/districts will follow this trend, and I pray that it happens soon.
- TorrentFreak: Judge: IP-address is not a person and can’t identify a BitTorrent pirate by Ernesto.
- ArsTechnica: Judge to porn trolls: IP addresses aren’t people by Joe Mullin.
- Calvin Li: Thoughts on the Ungaro order.
- RT: IP address does not constitute a person, judge rules in copyright suit.
- XBiz: Judge Wary of Geolocation Technology in Porn Piracy Case by Rhett Pardon.
- BoingBoing: Judge tells porno copyright troll that an IP address does not identify a person by Cory Doctorow.
- Slyck: Malibu Media BitTorrent Case: Judge Says No, an IP Address is Not a Person by Amanda Marie.
- PuntoInformatico: Copyright, il colpevole non può essere un numero by Gaia Bottà.
- Consumer Eagle: Courts Protect Consumers in IP Address Cases by Annamarya Scaccia
On 4/4/2014, following this groundbreaking order, Judge Federico Moreno, who, citing Judge Wright, recently denied Lipscomb’s request for ex parte discovery, sua sponte issued an Order to Show Cause “why the Court should rely on geolocation services to establish the Defendant’s identity and location in this district, as well as why the Southern District of Florida is an appropriate venue for this case.”
THE COURT has recently been made aware of an Order by Judge Ungaro in an identical case, Malibu Media v. John Doe, 14-cv-20213-UNGARO, finding that Plaintiff has failed to show that (1) the Court could rely on geolocation services to find establish the identity of the Defendant, (2) the Defendant’s location in this district, and (3) that the Southern District of Florida was a proper venue.
Response is due on April 14th.