Seeing people punishing themselves by not replying to trolls’ accusations makes me sad, very sad. Fighting against a collection agency or US Marshals is orders of magnitude more difficult and painful than fighting against porn copyright trolls. Every month we witness more than one default judgment, and the awarded amounts are Kafkaesque: a yearly income worth of fines for allegedly sharing a bunch of cheap porno flicks is an insult to the US Constitution (I’m talking about the Eight Amendment).
Yet this time, reading Judge Robert H. Cleland’s order issued back in October 2013 (Malibu Media LLC v. Lara Dupius, MIED 13-cv-11435), I couldn’t suppress a laugh. It was clear that the judge, while being bound by law, so he couldn’t deny the motion (which is 100% understandable), expressed certain disgust towards Malibu’s “counsel” Paul J. Nicoletti.
As a result, the amount defendant ordered to pay is 3 times less than the trolls demanded, an absolute statutory minimum: $750 per “work” times 20¹ = $15,000 total.
And it’s getting better as we keep reading:
[..] Malibu is awarded attorney’s fees and costs in the amount of $1,679. The court finds Malibu’s request for $2,550 (at a rate of $300 an hour for eight and a half hours) in attorney’s fees to be unreasonable—Malibu has filed hundreds of similar actions across the country and its attorney’s assertion that he spent an hour drafting what appears to be a boilerplate complaint, and an hour and twenty minutes drafting a two-page motion for default judgment strains the court’s credulity. The court further notes that Malibu’s requested attorney’s fees continually reference multiple defendants—a curious request given that there has only ever been one defendant named in this case. Accordingly, the court awards Malibu attorney’s fees for five hours at a rate of $250 an hour. See State Bar of Michigan 2010 Economics of Law Practice Summary Report, at 9 (stating that the median attorney billing rate for an attorney whose office is in Oakland County, south of M-59, is $250 an hour). The court awards Malibu its requested filing fee of $350, but reduces Malibu’s requested $95 service-of-process fee to $79 given that Malibu’s requested costs are contradicted by the record.
So the moral of this story is simple: if your job or relationship doesn’t depend on the fear that your name is dragged through the mud by the “barely legal” pornographers and scumbag lawyers, do not ignore summons, hire an experienced attorney and fight back. There are judges out there who are ripe for stopping the German plague.
Right after this post was published, Calvin Li and Raul noticed a very similar order (based on the one posted above) was issued in the same district, but by a different judge — David M. Lawson — yesterday (Malibu Media v. Kurt Shelling, MIED 13-cv-11436):
The plaintiff has not made a showing that justifies statutory damages in excess of the minimum amount. The amended complaint alleges merely that the acts of infringement were “committed ‘willfully,’” Am. Compl. ¶ 32, without any factual allegations to back up that conclusion. The plaintiff is entitled to $6,000 in statutory damages for the eight acts of infringement set out in the amended complaint, Exhibit B.
The plaintiff’s request for attorney’s fees is problematic.
The practice here is the essence of form pleading. For instance, on the day this case was filed — March 29, 2013 — seventeen other cases were filed in this district by Mr. Nicoletti with an identical complaint. Each of the complaints is seven pages long with thirty-three paragraphs of exactly identical allegations, and the amount of statutory damages and the terms of the permanent injunction requested is the same. The only difference between the complaints is the defendant’s assigned IP address, which is later used to identify the named defendant.
¹Lipscomb found this “legal bonanza” when he stopped filing mass lawsuits: with Malibu’s short films shared in bundles, he can claim multiple infringements from a single alleged file-sharer. This is a “feature” of the rigid, outdated copyright law: for the purpose of the statutory damages, the blindfolded Themis equally treats a multi-million cinematic masterpiece and a cheap, plotless 10-minute flick of amateur teenagers having sex. Only the most despicable cynics exploit this vulnerability to rob the population out of hard-earned money.