In a significant move, all these cases, initially scattered among many judges, were reassigned to a single judge — William Alsup — on 9/29. Three weeks later the judge allowed ex-parte discovery and set the initial case management conference, which took place today.
EFF’s intern Jack Bussell was in the courtroom and he was kind to share his notes:
Malibu Media mentioned Comcast and no other ISPs. They are currently receiving notices of representation and settlement offers. They asked for ISP compliance between December 11 and January 4. Malibu Media has not yet served any defendant. The judge had previously ordered that the last day for service would be January 7 to January 25.
Malibu Media stated that no one who they are going after would have infringed fewer than 20 works. The judge asked how Malibu Media identifies an infringer. Malibu Media responded that Excipio monitors the torrent swarm and downloads, but not uploads, the works. The judge asked how Malibu Media could be sure those persons actually infringed. Malibu Media responded that they would engage in depositions and building internet profiles. One example of a profile they offered was if the infringement stopped for a week and that coincided with a week the alleged infringer was on vacation.
Malibu Media stated that they are prepared to go to trial and meet their burden of proof. However, they acknowledged that most people settle and most settle early. They also stated they expect more pushback in “tech-savvy” Northern California.
Malibu Media has another case management conference scheduled for March 3 at 1:30, on 70 cases.
Judge Alsup said the settlement offers must be reasonable, not to multiply statutory damages “by every minute of the day,” and not to “use the federal court as a bludgeon.”
It is sad that the young Brenna resorted to telling fables to the judge: the proposition that “they are prepared to go to trial and meet their burden of proof” is disingenuous to put it mildly. Out of almost 5,000 cases filed in 13 states over the last three years, exactly zero proceeded to jury trial. We have been hearing the “we are not afraid of jury” song for years, yet every single case was either settled or dismissed. Notably, the majority of cases, where defendants seriously pushed back, ended up in walk-away settlements (no money changed hands): so much for the “impeccable evidence” and “eagerness to go to trial.” These cases are simply not designed to go to trial. Only dishonest, intellectually lazy or stupid would claim otherwise.
With all respect to Judge Alsup, “using the federal court as a bludgeon” is exactly Malibu Media’s modus operandi, and these people have been using courts as both bludgeon and money press for years.
I was going to stop here, but since Comcast is already sending out emails, and new victims are searching for “Brenna Erlbaum,” I felt compelled to share some thoughts.
First of all, here are some large friendly letters:
do not panic
This is not the end of the world: you are being scammed, albeit this racket is technically legal. The more you research, the more you transform from scared to pissed off. Unfortunately, ignoring this matter won’t make it go away. Assuming the ostrich position and disregarding court documents served at your home will inevitably result in a default judgement against you, which may reach 6 figures. Don’t ruin your life, lawyer up. At very least, call a couple of attorneys who are savvy in this type of cases: the majority will talk for free. EFF’s subpoena defense page or this site’s California page are a good start. (Update. Attorneys on the EFF list are self-submitted, without any vetting. You may encounter an inexperienced opportunist whose goal is not to advocate the best, but to make you settle quickly and collect the fees. That’s why it is imperative to call more than one attorney.)
The “internet profiles” and surveillance shouldn’t be taken lightly: Lipscomb’s minions do search through victims’ social media accounts in a hope to find something incriminating. In the absence of hard evidence, i.e. recorded transmission of entire videos, the only way Lipscomb can wrestle his victims into paying the ransom is to find circumstantial evidence. For example, the German “investigators” purportedly detect third party files shared from the same IP address and later search for signs of interest to the same artist/author/genre in the defendant’s comments, likes, and shares. Needless to say, this “proof” wouldn’t fly in front of a jury as it is prone to errors and inconclusive by a large stretch. Not surprisingly, Lipscomb did pursue wrong people in the past.
Thus, if you have received a notice from Comcast, the first thing you should do is to lock your social media accounts — Facebook, Twitter, YouTube, Google+ etc. Don’t overreact: don’t delete anything, as it can be used against you, just make you stuff private. Another way to pressure people into paying is to accuse them of perjury and spoliation of evidence. Be honest, but don’t do the job for the troll: making these people spend resources cuts into their profit margin, so if their business becomes less profitable, they will be less likely incentivized to continue their racket in the future.
Yes, this is a pure business of monetizing people’s misery. It has nothing to do with stopping piracy, otherwise quite different methods would be used.
Absolutely do not talk to the plaintiff’s attorneys directly, without your attorney: these guys are there to deceive you and provoke self-incrimination. It’s the same mistake as talking to the police, although there is much less at stake here.
One thing I am glad Ms. Erlbaum said was “they expect more pushback in ‘tech-savvy’ Northern California.” I hope for this too. There are lots of ways to fight back: lack of direct evidence, illegal porn production, “unclean hands,” questionable fee-splitting agreements, problematic copyrights — to name a few avenues. The troll fears discovery above all: Lipscomb & Co ran away from every single case where the defendant tried to pierce the shakedown enterprise.
While settling is an option, and I have no right to tell you what to do, I frown upon giving up and paying, except for special circumstances (such as a teacher whose career is at stake if he is publicly connected to “barely legal” pornography). I don’t’ think that “Don’t feed the troll” maxim needs an explanation.
So, lawyer up and push back. If you are innocent and confident, you may even turn the tables. There was a good precedent in the Ninth Circuit recently: a wrongly accused won $100,000 in fees in a similar case last year.
The emperor is naked. You just need some courage to see it.
Here is the minute entry filed in every case today:
Minute Entry for proceedings held before Hon. William Alsup: Initial Case Management Conference held on 11/19/2015. Plaintiff shall file proof of service of the summons, complaint and scheduling order between 1/7/16 to 1/25/16 (by the date applicable to this case.) Further Case Management Conference set for 3/3/2016 01:30 PM in Courtroom 8, 19th Floor, San Francisco. Court Reporter Name Kathy Sullivan. Plaintiff Attorney Brenna Erlbaum; Brian Heit. Defendant Attorney n/a. This is a text only Minute Entry (dt, COURT STAFF) (Date Filed: 11/19/2015) (Entered: 11/20/2015)
- Six months after Malibu Media re-infested California: some statistics
- Judge Alsup denies defendants’ motions while expressing doubt about the strength of Malibu Media’s lawsuits
¹ it was Ms. Erlbaum’s partner Brian Heit [SJD].