Guardaley | X-Art
Citing previous Malibu Media’s sheer abuse of court process, New York judge denies early discovery
Astonishingly, this time the troll lawyers (Lipscomb, Eisenberg and Baker, via a local Jacqueline M. James) managed to stay afloat and fleece New York citizens for almost a year, with very few setbacks. To date, Malibu Media filed 253 cases (NYSD: 200, NYED: 53).
This may change after today’s Order and Opinion issued by a district judge Alvin K. Hellerstein in Malibu Media v. John Doe (NYSD 15-cv-04369). Malibu’s motion for ex parte early discovery was denied, thus the case was effectively dismissed.
This order was built upon findings and opinions by other judges, and it is both significant and unique because of the number of citations from troll-busting New York, Wisconsin and Ohio rulings.
Citing a wide known “Copyright Trolling, An Empirical Study” by a Chicago law professor Matthew Sag, the judge started with describing the trolls’ modus operandi:
Recent empirical studies show that the field of copyright litigation is increasingly being overtaken by “copyright trolls,” roughly defined as plaintiffs who are “more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service.”
Quoting last month’s OSC by an OHSD Judge Timothy Black, Judge Hellerstein effectively called Malibu “copyright troll,” despite Lipscomb’s comical effort to deny the obvious.
And after stating that
In 2012, judges in the Southern District and across the country began awakening to the danger of copyright trolls, especially in the context of pornography,
Judge Hellerstein continued with the most damning quotes from orders by judges Marrero, McMahon, Baer, Brown, Fox, Black, Oetken, Conley, Randa and others. Again, I never saw an order based on such a thorough research. (We covered the majority of the cases cited in this order — follow the links in the previous sentence.)
In denying Malibu’s motion for ex parte discovery, the judge analyzed the factors allowing this type of exceptional relief, and in the judge’s opinion, none of these factors were favorable to Malibu: a nice reminder that the phrases “ex parte discovery” and “rubber stamp” are spelled differently.
Citing Judges Marrero and Oetken, Judge Hellerstein time and again reiterated the simple fact that an IP address is not equal to a person, thus concluding that Malibu didn’t show a prima facie claim:
[t]he fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer. Indeed, the true infringer could just as easily be a third party who had access to the internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business offering internet connection.
Moreover,
And even if Plaintiff could definitively trace the BitTorrent activity in question to the IP-registrant, Malibu conspicuously fails to present any evidence that John Doe either uploaded, downloaded, or even possessed a complete copyrighted video file.
Finally, Plaintiffs assertion that there is no alternative means of obtaining the desired information is inadequate. The only support for it comes from the declaration of Patrick Paige who, as Magistrate Judge Fox found in a different case, lacks personal knowledge of the methodology used by ISPs to match the IP address with its registrant. […] The Paige declaration that Judge Fox found deficient nearly three months ago is identical to the Paige declaration submitted in support of this motion. It fares no better this time.
The judge didn’t forget about the most egregious troll’s conduct, specifically:
When courts have attempted to place restrictions on the subpoena to prevent Malibu from abusing the process to extort defendants, Malibu has flagrantly disregarded them. For example, after one court issued “two orders unambiguously ordering [Malibu] to file [the identified IP-registrant’s name] under seal,” Malibu filed it publicly anyway. […].
And in the Eastern District of New York, Magistrate Judge Gary Brown took additional precautions to protect John Doe’s identity by explicitly instructing that “the subpoenaed information be sent directly to the Court, ex parte and under seal.” Patrick Collins, Inc. v. Doe 1 […]. Malibu instead served subpoenas that requested the identifying information be sent directly to Plaintiffs counsel.
The conclusion was devastating to the plaintiff (emphasis is mine):
In light of Malibu’s history of abuse of court process and its failure to show “good cause,” I decline to give it the benefit of an exception to the normal rules of discovery. Plaintiff’s motion for leave to serve a subpoena on Time Warner Cable is denied. The case will proceed in normal fashion.
I really hope that other New York Judges will adopt this extremely well-researched opinion and oust the abuser from their state, this time for good:
Related
- Russel Smith: Malibu Media Denied (Twice) Subpoena to Ascertain Identity Of Alleged Copyright Infringer
Coverage
- TorrentLawyer (Rob Cashman): NY Judge asserts the ‘is porn copyrightable’ question against Malibu Media, LLC
- TorrentLawyer (Rob Cashman): Understanding the patterns of filings by Malibu Media, LLC
- XBiz: Judge Issues Strongly Worded Order Denying X-art.com Subpoena Power
- Courthouse News Service: Judge Raps Pornography Troll’s Knuckles
- Recording Industry vs. People (Ray Beckerman): Judge Hellerstein denies Malibu Media discovery motion
Fight © Trolls 
NONE of the judges can correctly describe BitTorrent. However, if you replace “Seed” with “Complete File”, then it’s more or less correct. The Seed is the original file, as uploaded by the creator of the torrent. That’s usually FlashMP4, isn’t it?
MM/Patrick Paige/Freaking Germans cannot track the actual exchanges that take place between Peers. Oh, no, not at all! Those exchanges take place between Peers, and there is no way (other than installing bots on the defendant’s PC) that they can definitively show that such an exchange occurred.
The only thing that MM/PP/FG can do is directly download, from the defendant’s own computer, one or more bits of a piece of a file identified by a torrent. The defendant may have left the torrent up in their torrent program, though the file itself might only be partially there. Hell, all they might have is fragment # 349 of 2000. If that’s the one that MM/PP/FG downloads, bingo, they’re in the lawsuit. They cannot show that the defendant has a complete file without downloading the complete file from the defendant’s computer, which is highly unlikely, since most torrent programs will set ‘leechers’ (1) to the lowest bandwith, typically 10kbps. Downloading a 30 minute HD film at those rates takes forever. Without showing that defendants have the COMPLETE film, a copyright action must fail.
(1) The MM/PP/FG folks MUST be leechers–that is, BitTorrent participants that only download but never upload. If they do upload/share their fragments in order to up their transfer speeds, then it can be argued that they are materially participating in the distribution of their files, hence, they have given up their copyright.
You have an incorrect description of how Bittorrent works. When I connect to a peer it tells me which pieces of the file it has. My monitoring client can ask for some of these pieces to show that the defendant has this part of the file. Logging the pieces and the report of what pieces are are claimed to be there should show that the file is on the computer. Since when you initially connect you have no pieces you can get away with capturing some without the need to send any back. If you luck out and connect to a seeding peer (one with the full file who is only sending pieces to those who need/want them) getting a few pieces and the log showing that the client is in seeding mode is a slam dunk proof that the client has the full file.
Need to send that judge a gift basket, rare to see one do that level of work.
If this judge ever runs for ANY office, I will vote for him hands down on this alone.
There is at least one more Malibu case pending before Judge Hellerstein: 15-cv-04729. Filed on 6/17, no order yet.
According to an update on Cashman’s TorrentLawyer site, the rest of the Judges continue to rubber stamp. It would be nice to see all of the cases consolidated to Judge Hellerstein.
Ha! Googled for the judge’s name and look what I found. It happened today. That’s how Judge Hellerstein rolls:
Judge Awards $229,500 to North Texas Woman Who Got 153 Robocalls
Given the level of malfeasance in various cases I am surprised that Malibu hasn’t been declared vexatious already.
Directly disobeying a judge’s orders (particularly with regard to filing under seal) should result in the lawyers (and paralegals) involved spending at least a week in the courthouse cells for contempt and disbarring proceedings inititiated.
One can hope that one judge is sufficiently pissed off that it happens. I do get the impression that thermonuclear doom is zeroing in on the egrerious copyright trolls. As someone else commented the gears grind slowly, but they grind exceedingly fine.