After reading DieTrollDie’s post regarding how troll Leemore Kushner plays loose and fast with Local Rule 83-1.3 by refusing to file notices of related cases with her shitload of Malibu Media lawsuits, I thought it was time to post about a little order which little old me stumbled across recently.
The lawsuit is Malibu Media v. John Does 1-10 (12-cv-3623) which is pending in the Central District of California before Judge Otis D. Wright. As is usual with a copyright troll lawsuit, Kushner makes a motion to serve third party subpoenas prior to a Rule 26(f) conference, which, as the judge notes, is typically not allowed (in the context of all civil cases, not just mass BitTorrent lawsuits), but there are exceptions. As all the other trolls, Kushner argues that her lawsuit is an exception to the general prohibition.
Unlike some federal judges, Judge Wright displays a better understanding of BitTorrent than me. In his findings the judge notes that, amongst other things:
There are several nuances about the BitTorrent protocol. First, every participant may upload and download pieces of the file. Second, these individual pieces are useless until a user has all of them; the user cannot reassemble the original file with even 99% of the pieces. Third, a user may log on and download just one piece (e.g., a 10kb piece) of the file and then log off, waiting to download the other pieces later or discarding the downloaded piece. Fourth, a user may restrict his BitTorrent software to only download pieces, and not upload.
In discussing whether to allow the issuance of the third party subpoenas, the judge observes that (all together now!) the subscriber may not be the actual infringer, so “in some situations, the identity of the subscriber may yield the identity of the infringer; in others, the infringer may never be known,” Judge Wright then goes on to hint at how this is all going to end:
Although the Court is inclined to allow Malibu to conduct this discovery, the potential for abuse is very high. The infringed work is a pornographic film. To save himself from embarrassment, even if he is not the infringer, the subscriber will very likely pay the settlement price. And if the subscriber is a business, it will likely pay the settlement to save itself from the hassle and cost of complying with discovery — even though one of its customers or employees is the actual infringer.
Returning to his finding regarding BitTorrent, the judge points out that the troll has not put in any evidence that the Does downloaded the entire porno which the judge notes:
…that Malibu’s case is weak if all it can prove is that the Doe Defendants transmitted only part of all the BitTorrent pieces of the copyrighted work.
Judge Wright goes on to note that there is no evidence that the Does acted in concert and severs Does 2-10 from the lawsuit. With respect to Doe 1, the judge admonishes the troll (emphasis is mine):
…though Malibu now has the keys to discovery, the Court warns Malibu that any abuses will be severely punished.
In other words, do not dun Doe 1.
Here comes the punch line, and rather than dissect it, I think it is best appreciated as originally put down (again, emphasis is mine):
The Court is familiar with lawsuits like this one. AF Holdings LLC v. Does 1-1058, No. 1:12-cv-48(BAH) (D.D.C. filed January 11, 2012); Discount Video Center,Inc. v. Does 1-5041, No. C11-2694CW(PSG) (N.D. Cal. filed June 3, 2011); K-Beech,Inc. v. John Does 1-85, No. 3:11-cv-469-JAG (E.D. Va. filed July 21, 2011). These lawsuits run a common theme: plaintiff owns a copyright to a pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; because of embarrassment, many Does will send back a nuisance-value check to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars. Rarely do these cases reach the merits. The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement — making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it.
Here is the entire order, hope you enjoy it:
For those who cannot access Scribd, enjoy the order here.
Happy Independence Day!
I’m happy to observe that Judge Write’s opinion reverberates all over the country: just noticed that it was quoted in Comcast’s reply to Prenda’s status report in the Hard Drive Productions v. Does 1-59 case (4:12-cv-00699, TXSD).