Malibu Media subpoenas Comcast for the “six strikes” data: why it is a big deal

Posted: June 29, 2014 by SJD in Digital freedom, Lipscomb, XArt
Tags: , , , , , , , , , , , , , , , , , ,

First TorrentFreak, then ArsTechnica noticed very troublesome developments¹: Malibu Media, the most damaging copyright troll today, was given a green light to subpoena Comcast for Malibu victims’ “six strike” data (the ISP’s register of alleged copyright infringements).

More than a year ago a controversial “six strikes” program (officially titled “Copyright Alert System“) was created by movie and music trade groups (together with the biggest ISPs) with the goal of deterring piracy. Although the program has many flaws, its creators have been stressing its educational rather than punishing nature. Nonetheless, the participating rights holders reserved the right to subpoena identities of the “most persistent” infringers with the purpose of suing them. It has not happen so far: the PR disaster that labels brought upon themselves by going after individual file-sharers is still fresh in people’s memory, and I doubt that the labels really want to step onto the same rake again: it seems that the lawsuit provision was added mostly as a strong deterrent.

So, while the actual rights holders are hesitant to pursue the litigation route, those who don’t have reputation to begin with, are now trying to camel-nose the weakest point of the program.

I already wrote about Lipscomb/Nicoletti/Schultz’s request to commence a fishing expedition to Comcast’s private data storage. At that time it was only a request. This time it was granted — in two courts.

First, in Illinois, Judge Brown granted plaintiff’s motion on 6/18/2014 in the eventful Malibu Media v. John Doe (ILND 13-cv-06312). It is worth noting the usage of the word may, which can be a scrivener’s error, or (I hope!) a hint to Comcast (emphasis is mine):

It is hereby ordered that Plaintiffs Motion is granted. Plaintiff may serve a third party subpoena on Comcast in the form attached as Exhibit A to this Order, and Comcast may comply with that subpoena.

Next, in Indiana, Magistrate Dinsmore ordered that “Comcast should comply with Plaintiff’s subpoena” in Malibu Media v. Tashiro (INSD 13-cv-00205).

The last of the three known fishing attempts of this kind is pending in Michigan (Malibu Media v. John Doe, MIED 13-cv-11432). An interesting nuance here is that the trolls want to depose not only the defendant’s previous provider, Comcast (the one the defendant was using at the time of the alleged infringement), but also his new one, AT&T. Please remind me: where did we see the names of these two ISPs together in a single lawsuit? Facepalm.

Why does Malibu needs this information in the first place?

The answer is simple: the trolls don’t have sufficient evidence against the defendants to win a jury trial. Period. After examining the defendats’ hard drives, after invading the neighbors’ privacy (in Illinois Malibu interrogated defendant’s neighbors with the court permission), the trolls still want a very vague data that cannot prove much to begin with!

Comcast must intervene

I understand that Comcast is overwhelmed by the blizzard of subpoenas from the copyright trolls and cannot object to all of them. Nonetheless, ISPs did fight for their customers and for their reputation in the past. The performance of their attorneys in AF Holdings v. Does 1-1058 in DC and Lightspeed v. Smith in Illinois was excellent. Again, priorities are priorities: not all cases are created equal: some warrant picking up a fight, and some are simply critical.

This is such a case. Complying with these overreach subpoenas without giving a good fight will open a can of worms, no doubt. Today it is the “six strikes” data; tomorrow it will be the browsing history. Since the entire trolling “business” is premised on the pressure to settle rather than collecting evidence for a jury trial, every tiny bit of the victim’s privacy that trolls put their fingers on will be used to extract a ransom. None of us are completely free of vices. Everyone has something deeply private that can be leveraged by blackmailers.

A gruesome analogy

I’m risking to be prosecuted according to the Godwin’s Law, but I can’t stop thinking about the following analogy. As the Swedish Pirate Party founder Rick Falkvinge wrote in one of his articles,

The Netherlands used to keep track of people’s religion as part of the public records. The intent was noble as always: by keeping track of how many Jews, Catholics, and Protestants there were in a city and its different parts, you would be able to plan for an appropriate amount of synagogues, Protestant churches, and Catholic churches, their proportion to one another, and so on.

Then, World War II came around.

There were almost no Jews at all in the Netherlands after World War II. According to Wikipedia, less than 10% survived (14,346, compared to an earlier population of 154,887). As it turns out, it was very convenient for the… new administration… to have access to the collected data, and it was indeed used against the citizens, as it always is in the end.

The difference here is that we are not talking about the government, yet the alliance of the copyright cartel and ISPs is no less scary when it comes to data retention, even for “educational purposes.” Was “six strikes” conceived in good faith? Maybe. Is it about to be cynically abused by the porn trolls? Hell, yes.

 


¹6/30/2014 update: Techdirt also paid attention to this news.

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Comments
  1. that anonymous coward says:

    So very tired of these magical black boxes being given footholds in the court.
    These cases are all started with the magical our black box says it is true…
    If I rolled up with a magic 8 ball, I’d be laughed out of court… but if I called it a proprietary technological system with an “expert” statement claiming it was true I could file a case.

    • RKD_observer says:

      If the courts had any technical understanding whatsoever, they’d demand an independent expert scrutinise all aspects of the software and its source code before even considering accepting its output as evidence.

      • that anonymous coward says:

        Well I am sure that the defense will make sure to point these things out, and it will be very uncomfortable having to admit the case & this “evidence” come from magic black boxes no one is allowed to validate for accuracy.

  2. Jane Doe says:

    I thought Comcast only retains IP address log data for 6 months and do not assign static IP addresses. The German investigators are tracking people for over a year prior to filing a claim. Some of these cases are nearly a year old. This all suggests there will be little that Comcast can provide.

    6 strikes times $150,000 per infringement is a million dollars with legal fees, etc. I wonder how many families with teenagers will decide not to subscribe to broadband internet service if they learn of the real risks of getting sued.

  3. sharp as a marble says:

    the thing is that malibu does not issue dcma takedown notices and does not participate in the 6strikes program so legally data suggesting that the defendant may have infringed on other content is not relavent. and if it is relevant then so too should the 2257 records. barrier protection records. and zoning laws/commercial filming permit records with regards to xarts films. if one is relevent to show that the defendant is a serial infringer then how is the other not relevant to show that the plaintiff is a serial ingnorer of the law/serial criminal.

  4. Anon E. Mous says:

    To be honest I view this more as another desperate attempt to make it appear that there is “substance” to allegation of copyright Infirngement that Lipscomb/Malibu is alleging in this lawsuit and other litigation they have spread out. This looks to more of a “lets throw it against the wall and see if it sticks” tactic.

    In my opinion ( and I am sure there are more than a few that will agree ) Lipscomb / Malibu cases aren’t exactly what I would be of the opinion as a slam dunk.

    The very allegation of copyright infringment that Lipscomb / Malibu alleges has taken place is based really on the monitoring company recording a bit torrent client with some IP address downloaded/shared an X-Art movie and some hash value were obtained and the event was recorded and the period of time. ( with some variances of course, but I don’t feel the need to bore you with those details as we have seen in these in Lipscomb/ Malibu’s court filings )

    In the words of Team Prenda: “So What?” ( Yes.. only team Prenda would have the chutzpah to put that in a court filing) ( The Lightspeed sanction appeal ) When I view Lipscomb / Malibu’s filing those words written in Team Prenda’s appeal resonate quite loudly with me and seem appropriate in my view of this case based on the facts cited in the court documents.

    Lipscomb/ Malibu’s case hangs on that IP address. If you dont have an IP address, you don’t have anyone to go after. The IP address is crucial to this and other troll cases. No ISP subscriber information is coming forward, it would begoing to throw a serious wrench into the plan. No IP address subscriber information, no one to try and wring a settlement from. This isnt the RIAA & MPAA spending tens of millions of dollars to enforce copyrighted works.. This revenue generation not enforcement in my opinion.

    With these 6 strike infringment notices being asked for from the ISP’s just screams to me that the Troll is going with the ” Let’s throw at the wall and see if it stick strategy. We all know if this was a murder case and you were trying to use Lipscomb /Malibu’s “evidence ” That it may be seen as circumstantial.

    Not every IP address has an infringer behind it if you ask me. Lipscomb/ Malibu can not say who was or wasn’t using that IP address. ISP’s rotate IP address as they only have so many assigned to them ( Aside from static ones. Just because Fred has that IP address that is such & such this day doesn’t mean it will be that way in a day or two or a week from now.

    One again ” So what? ” If this were a Murder case, the “evidence” would be circumstantial at best. Most would know that in reading the various Troll lawsuit documents, they are very light
    on evidence in my thoughts.

    The six strikes are like the Exhibit “C” evidence that Lipscomb /Malibu like too infer as proof of additional infringment but aren’t really connected with the Plaintiff and their copyrighted works. They are in my opinion a ruse, a way to make it seem like the case is so rock solid that a Defendant and his/her counsel would be foolish to come before it. (Run… Run.. flee the village before the copyright Trolls come to take you soul …or a large wad of cash )

    IMHO the six strikes data means nothing, not diddly squat. All it tell’s Lipscomb is this IP address got said number of notices that the IP was detected having alleged activity with copyrighted works in some fashion that would precipitate the sending of a notice. ” So What? ”

    The notice can not differentiate: whether the subscriber triggered the alert, whether the IP was spoofed, whether ISPi subscriber used their internet connection, whether if it was anyone else in the house, whether it was a guest, whether it was a neighbor who connected via a open WiFi router, whether someone hacked the router and used the WiFi connection and said IP address, whether the ISP had rotated the address thru a cycle or ten cycles and someone got a notice simply because they have the IP address at the moment.

    The six strikes notices are not proof of anything other than one or more may have been sent to the said IP address. It does not PROVE anything! it is hearsay at best. It is in my opinion another Exhibit ” C” to add filler to a case that I would be of the opinion is threadbare on proof. An IP address can lead to some where or lead to nowhere.

    IP Addresses are spoofed constantly. They are used in SPAM campaigns, they are used in Malware/phishing/hacking/phreaking. They are used as a chain to bury the trail if one is up to no good and being hunted by cyber security investigators and researchers. They are used to mask those who are sharing and downloading torrents as well, but still don’t prove the ISP subscriber is an infringer.

    IMHO what we are witnessing here is some desperation. Desperation to hold a litigation strategy that the courts, public, lawyers and media have been hammering on with information, how to, where to, what to, what not to and educating the populous to what the litigation is about, what is taking place and how to help yourself and educate others..

    We have witness many Troll Revenue Litigation operations succumb to their own greed and corruption, to feel the sting of an informed public and defense lawyers and ISP’s and the courts who have struck down Trolling operations and the parties in them for their wonton litigation strategies who are straddling the line of being lost in the abyss.

    Yes folks, what you are witnessing here is an attempt to bolster a case that would appear thin on absolute proof in my opinion, so we see an attempt to throw more “evidence” in to add more filler in to lend to the allegation proofing the ISP subscriber is guilty as sin. To me, this is more filler and an attempt to further the means to achieve a settlement before the whole strategy comes down with a thump.

    We all know it is only a matter of time before defendants counsel and the ISP’s strike out at the six strikes inclusion into these troll litigation cases, and point out to the Judge these are by no means an proof of infringement and the facts do not indicate/ prove the ISP is a copyright infringer.

    I believe a court will eventually see these notices are speculative and circumstantial and in no way are in deniable concrete evidence of an ISP subscribers guilt.

    The trolls are in trouble on many fronts, while they may see these six strikes notices as another line traced to an infringers guilt, however the pandora’s box they have opened I think is going to further lead to more motions from defendants. defendants counsel and the ISP’ legal teams as to the six strikes policy is not proof of infringement and is seen more as an educational tool and was never intended to be an instrument of evidence in copyright infringement cases

    You can bet the ISP’s are going to want to nip the use of the six strikes notices in the bud. The ISP’s will encounter a significant uptick in labor and remedial services costs to track and supply plaintiffs with notices for affected subscribers of their Internet and producing and tracking six strikes notices to plaintifss counsel.

    Count on the and defendants counsel to educate the court what the plaintiff is really trying to do with the case before the court and the circumstanial evidence contatints in these lawsuits and how these six strike notices are not sound factual basis of the ISP subscriber infringing.

    Should be fun to watch the onslaught the trolls will have to deal with

  5. snjwffl says:

    What they’re asking for is basically how many times the subscriber has been accused* of wrongdoing; it’s worrying that a judge thinks this could ever be relevant in a court of law. What do you think would happen to a lawyer asking to subpoena a local police station for “the number of times this guy has been accused of rape” ?

    * … by private entities… who openly say that it would be unreasonable for them to investigate before making those accusations…

  6. Raul says:

    Willing to bet anyone a lobster dinner that the subpoenas, as troubling as they are from a privacy standpoint, return zilch evidence that is helpful to prove their case.

    • Anon E. Mous says:

      I agree Raul. The six strikes was more of educational ( read let’s scare people that they might be getting busted for infringment ) devised by the RIAA and friends with the ISP’s

      The problem I have is this is, the monitoring is run by a company that works for the copyright industry. Now these folks dont get it right a lot of the time with take down notices to Google and other search engine and web sites. So how are we to believe in their accuracy of the six strikes monitoring and enforcement.

      And no offense in my opinion Lipscomb/Malibu case is thin on real evidence and to Malibu wants e the fact to use the six strikes is really more of a filler tactic. The case as I said in my opinion is light on evidence and this I believe they may perceive as ” evidence ” but in reality I would say this is more of a pressure tactic to say” look we have all this evidence, settle now and save yourself from financial ruin with this and other evidence of infringement

      I also believe a defense lawyer will skewer Malibu on the six strikes notices.never even mind comcast

  7. Rumplestein says:

    I wonder if this is a desperate, fly by the seat of your pants attempt by Lipscomb & Company to avoid sanctions for filing a frivolous claim. In at least one of the cases here, they found no evidence of Malibu Media’s teen porn on the defendants’ computer. This certainly raises the question as to the validity of the German spies who work for mail drop boxes and go into hiding when they are deposed.

    It is pretty careless to state the entire case hangs on evidence that you don’t even know exists. So what happens if there are no DMCA notices? A likely facepalm fail moment.

    I received a DMCA from Adobe. I had purchased valid license but DVD was damaged so I downloaded and installed the program. On the receipt of DMCA notice, I called Adobe, gave them my license number and they were fine with it. Said they would make note the DMCA is invalid as I had license. Lipscomb would cry Eureka, we proved you are a private. And yet be so utterly ill informed.

  8. Jiminy Cricket says:

    If Malibu Media wanted to stop piracy, they would send DMCA notice to ISP and advise that if it happens again they will be sued. Having German investigator monitoring someone for a year is absurd. Like a bank leaving the door and vault open for a year. Who is at fault if the bank gets robbed? It is amazing that any judge doesn’t see Malibu Media/Guardaley as just a trap with the bait being of no value. As the German court found the video clips are harmful and not copy right protected.

  9. Anonymous says:

    Possible interesting development in Ohio. Malibu just filed 19 new cases in Ohio ND in the last week, 10 of them against subscribers of Buckeye Cablesystem. This ISP regularly challenges copyright trolls and has had some success in the past, so they might be worth watching.

    1:14-cv-01389
    1:14-cv-01387
    1:14-cv-01384
    1:14-cv-01422
    1:14-cv-01423
    1:14-cv-01424
    1:14-cv-01425
    3:14-cv-01421
    3:14-cv-01430
    3:14-cv-01431

  10. John Roberts says:

    Posting and comments here seem to be based on reason and logic. What gives? Isn’t this supposed to be a pathological, criminal, hate group?

    • Anonymous says:

      Don’t worry. At some point Maurice Ross will show up to balance things out.

    • Anon E. Mous says:

      Yes, we are a Pathological Internet Hate group, our plan to take down the Troll’s is to baffle them with facts and logic while they try to bring us down with bullshit they try to pass off as brilliance.

      If you want to join us you can submit an application and a 5 page rambling letter on how you are convinced the Troll’s are out to get you.

      Once we process your application, please look for a black cat to cross your path, then listen to the voices in your head that will tell you to type “Copyright Troll” into Google backwards, this will tell you where you can pick up your ” Internet Hate Group ” T-Shirt bumper sticker and certificate of “Psychopathic Excellence” that you can proudly list on your resume.

      We encourage you to recruit any invisible childhood friends you have to the cause as well. With every fifth person ( real or not ) that you recruit to the Internet Hate Group you will receive an official Tin Foil Hat. With the tenth person you recruit to the Internet Hate Group, you will receive a ham, plaque, and a voucher to stay at any of the recommended psychiatric facilities on the Internet Hate Groups approved involuntary accommodations list.

      Please remember to stay in a heightened state of paranoia at all times. Thank You

  11. DB says:

    I entered ‘llort thgirypoc’ troll into Google, and only got SEO food (random text pages with links, designed to fool search engines into thinking that they have valuable content and therefore that the links mean something).

    Perhaps I’m not worthy of being a member of a PIHG.

  12. Anonymous says:

    I have spent the better part of the last 45 minutes on the phone with Verizon trying to ask a simple question but have not spoken to anyone that understands my question. Can I request a copy of my own CAS log? If an attorney can request that information shouldn’t I have access to it as well?

    • Anon E. Mous says:

      Actually, that’s a very good point. I wonder how the privacy policy would work in regards to customers availability to see the information against them. Since this is a company that has a former association with folks from the RIAA, I would suspect they will be loathe to share that information.

      I t will be interesting to hear if anyone else tries this with their ISP to see what the various ISP have to say with regards to this. If anyone does attempt this, keep us updated on your results

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