US Federal Judge
William H. Alsup
When a copyright troll Malibu Media (X-Art) re-infested California in September 2015, Northern District’s Chief Judge Phyllis Hamilton ordered all Malibu’s cases, including any future ones, to be assigned to Honorable William Alsup – one of the most thorough and technically literate federal judges. I was pleased with this development, and my gut feeling didn’t betray me: for the last 18 months, Judge Alsup, while reluctantly permitting ex-parte discovery, has been giving X-Art and its lawyers a hard time, apparently clearly understanding Malibu’s get-quick-rich-at-expense-of-ruined-families scheme.
I covered this judge’s disdain for the shakedown scheme on more than one occasion on Twitter and in this blog:
In the follow-up to the last blog post listed above I analyzed the case dismissal pattern in the neighboring district (CASD), arguing that Malibu’s geolocation tech accuracy claims are statistically impossible. I opined that Malibu’s lawyers are playing games when judges ask uncomfortable questions.
It looks like my concerns were finally shared by Judge Alsup: today the judge issued a tersely worded order to show cause in Malibu Media v John Doe (CAND 16-cv-05975), maybe the harshest of all his copyright trolling-related orders to date:
Malibu Media now moves to continue the case management conference in this action, which is currently set for May 18 at 11:00 a.m. because it only received defendant’s identifying information on April 23, and has not yet had time to serve the summons and complaint, the deadline for which is May 28.
That request is DENIED. Instead, Malibu Media is hereby ordered to SHOW CAUSE at that hearing, why the Court should not bar further Malibu Media cases in this district until the accuracy of the geolocation technology is fully vetted. Malibu Media shall file a written statement, with all factual assertions supported by declarations sworn under the penalty of perjury by MAY 16 AT NOON.
To be clear, this order applies even if Malibu Media voluntarily dismisses this action.
The reason behind the judge’s irritation is a recent dismissal of more than half of the cases from the “fourth wave in a monsoon of two-hundred thirty-five actions that Malibu Media has filed in this district in the past eighteen months”: 37 out of 57 cases were dropped without any explanation, which likely killed any remaining benefit of doubt:
Malibu Media’s voluntary dismissal without prejudice of groups of its cases is not a new pattern. A sizable portion of the cases from previous waves were terminated in the same way. The practice has just become more frequent, and it follows skepticism by the undersigned judge and others around the country about the accuracy of the Maxmind database. See Malibu Media, LLC v. Doe, No. 16-01006, 2016 WL 3383830, at *3 (N.D. Cal. June 20, 2016) (collecting cases); cf. Kashmir Hill, How an Internet Mapping Glitch Turned a Random Kansas Farm into a Digital Hell, Fusion (Apr. 10, 2016, 10:00 A.M.), (reporting a glitch in Maxmind’s database that mapped more than six hundred million IP addresses to a single farm in Kansas).
Will the troll continue irritating this judge or will Malibu cut and run by dismissing all the CAND cases – like Prenda did in the end of 2012, when Judge Wright called out the fraud? I bet on the latter, but only time will give us a final answer.