Guardaley | X-Art

Judge Wright is so right: copyright trolling is “essentially an extortion scheme”

By Raul

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.

Federal Judge Otis D. Wright

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).

wordpress counter


91 responses to ‘Judge Wright is so right: copyright trolling is “essentially an extortion scheme”

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Pingbacks & Trackbacks

  1. Bellwether trial is looming; Lipscomb’s weaselry continues | Fight Copyright Trolls
  2. Some Thoughts on Prosecuting and Defending Bittorrent Cases | Philly Law Blog
  3. Porn troll Malibu Media sanctioned for trying to embarrass defendants |
  4. Class Action Filed Against Lipscomb Eisenberg Porn Clientele | Troll Defense
  5. More woes for Malibu Media: Nicoletti in the judicial crosshairs | Fight Copyright Trolls
  6. The emperor has no clothes: a Doe moves for summary judgment in a Malibu Media lawsuit | Fight Copyright Trolls
  7. Florida judge to Lipscomb: No good cause to allow early discovery | Fight Copyright Trolls
  8. An unusual default judgement in Illinois: the good, the bad and the ugly | Fight Copyright Trolls
  9. Copyright trolls re-infest California: meet new porn troll Brenna Erlbaum | Fight Copyright Trolls
  10. Is Verizon fed up with Lipscomb’s increasing arrogance? | Fight Copyright Trolls
  11. A model Answer to Malibu Media’s frivolous complaint | Fight © Trolls
  12. Six months after Malibu Media re-infested California: some statistics | Fight © Trolls
  13. Judge Alsup denies defendants’ motions while expressing doubt about the strength of Malibu Media’s lawsuits | Fight © Trolls
  14. Judge thwarts troll’s sneaky practice of securing safe retreat from potentially frivolous lawsuits | Fight © Trolls
  15. How copyright trolls plunder both US citizens and… rights holders | Fight © Trolls
  16. With surgical skill judge McNulty removes 96% from a demanded $100+K default judgement and discovers a terminal case of possible Malibu Media’s fraud on the federal judiciary | Fight © Trolls
  17. Defendant moves for sanctions against Malibu Media and its attorneys Brenna Erlbaum and Brian Heit | Fight © Trolls
  18. Malibu Media claims it wants to catch the initial seeder: why this claim sounds shallow | Fight © Trolls
  19. A Chicago bittorent defendant files a class action complaint against the Germans and troll attorney Michel Hierl | Fight © Trolls
  20. Judge Calls Copyright Troll's Bluff, Sets Trial Date
  21. A Washington nonprofit aims to unveil copyright trolls’ dirty secrets | Fight © Trolls
  22. Under penalty of perjury: Copyright troll Malibu Media gets caught serving up falsified attorney’s fees declarations | Fight © Trolls
  23. In devastating detail, defense attorney documents years of copyright trolls’ fraud on the federal judiciary | Fight © Trolls
  24. Magistrate judge finds that defendant’s privacy interest trumps copyright troll’s need to unmask an alleged infringer, denies ex-parte discovery | Fight © Trolls
  25. Yet another lawfirm sues its former client Malibu Media | Fight © Trolls