Guardaley | X-Art

An Ohio judge thinks that Malibu Media’s pleadings are sloppy, vacates his previous orders granting discovery

A recent infestation of the Ohio state by the copyright troll Guardaley/Malibu Media/Lipscomb (via a local hungry attorney Yousef Faroniya) did not amuse certain judges in the Southern District. On Thursday, Judge Thomas M. Rose vacated his previous orders granting ex parte discovery in four cases (Malibu Media LLC v. Does, OHSD 14-cv-00150, 14-cv-00151, 14-cv-00183, 14-cv-00184), giving Malibu 30 days to fix the problems the judge saw (and smelled). Such things don’t happen every day; hence I wanted to write a short post (thanks to Raul for the heads up).

Judge Rose outlined two issues:

First, Malibu has not presented prima facie evidence of copyright ownership of the specific copyrights at issue. Malibu pleads that it owns the copyrights at issue in its unverified Complaint but there is no evidence from which a court could conclude that Malibu has made a prima facie showing of ownership (the Declaration of Colette Fields attached to the Complaint is invalid because it is not dated and, if it were valid, does not indicate ownership of the specific copyrights at issue).

Second, Malibu’s Complaint alleges that it has traced the allegedly infringing IP address to a physical address that is located within this Court’s venue. The Complaint later alleges that Malibu knows only the IP address and seeks to learn, among other things, the associated physical address. The Court is unclear as to whether or not Malibu knows the physical address of the alleged infringer. If it does, why does it seek to again learn it? If it does not, how was venue determined?

The latter concern was recently raised by Judge Ungaro in Florida (Malibu Media v. Doe, 14-cv-60259): she issued an order to show cause that asked exactly the same question: why Libscomb is so sure that the venue is proper. Lipscomb submitted a lengthy response — all in vain: the judge seemingly didn’t want to navigate through the weasel’s burrows and, frowning, simply dismissed the case for failure to timely serve the defendant.


I hope that the recent mudslide of Malibu Media cases descended on the Ohio state will prompt somewhat heightened scrutiny, and the other judges stop rubberstamping ex parte intrusions to US citizens’ privacy.

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5 responses to ‘An Ohio judge thinks that Malibu Media’s pleadings are sloppy, vacates his previous orders granting discovery

  1. Malibu Media claims the internet subscriber is the infringer. But we just saw in a recent case of theirs that if the wife is the subscriber and a penis resides in the household, it is the penis that they claim is the infringer. So what is the real story?

  2. It’s nice to see that a Judge look at the supposed evidence of infringement and has found it lacking to proceed further.

    We all know how thin the alleged evidence is, but it’s great when the courts notice it as well. Let’s hope that upon further scrutiny if Malibu/Lipscomb re-files that the Judge see’s that the alleged evidence doesn’t get any better and tosses these suits period.

    I don’t see Lipscomb/ Malibu trying to bail this early yet. I am sure they will try another kick at the can for that easy cash, lord knows they wouldn’t want to miss the chance to empty some poor ISP subscribers pockets

  3. BTW did anyone notice that in Lipscomb’s reply that there was this little gem.

    ” Statistics demonstrate that the
    Internet Protocol Address (“IP Address”) geolocation tracing process used by Plaintiff here to locate Defendant’s IP address to this District, accurately predicted in counsel’s prior cases that a Doe defendant’s IP Address would trace to the Southern District of Florida 100% of the time. The score is 110 out of 110 ”

    LOL I guess they needed to really convince the Judge that their IP geo location tool is always accurate, so much so that they changed the 99% that most of their pleading had before to 100% in this case.

    I guess Keith forgot about the business man they claimed was an infringer and how their accuracy with their geo location tool was 99% accurate in that case according to their pleadings in that case, and then it turned out not so accurate after all.

    BTW Keith how do you get “The score is 110 out of 110” out of 100%? I guess as long as you know about the business owner and the fine geo location accuracy in that case, that the court doesn’t need to know that.

  4. As we learned with Prenda, oftentimes trolls ignore orders like these. Judges have to insist that the trolls refund the money extorted from the subscribers identified from the now-rescinded discovery order, and file affidavits of compliance with the new court order.

  5. A judge questioning the validity of copyright assignments and ordering a plaintiff to cease discovery… I know I’ve seen these exact two issues together somewhere but I just can’t remember who it was or how it turned out… Oh well, it must not have led to anything important 😉

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