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.