Guardaley | X-Art

Malibu Media case management conference in CAND: notes and thoughts

“Barely legal” porn copyright trolls Guardaley | Excipio | Keith Lipscomb | X-Art | Malibu Media (the beast has many heads and names) re-infested California with 70+ individual lawsuits in September after a three-year hiatus.

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:

US Federal Judge
William H. Alsup

There were two attorneys for Malibu Media, Brenna Erlbaum and a man whose name I didn’t catch¹.

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.

Good luck.

Updates

11/20/2015

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)

Followups

 


¹ it was Ms. Erlbaum’s partner Brian Heit [SJD].

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Discussion

8 responses to ‘Malibu Media case management conference in CAND: notes and thoughts

    • How much? Zero. These are dismissals without prejudice, which is a certain indicator of no settlement. Why and how? I don’t know. Erlbaum testified that Comcast hadn’t released the information to the trolls yet. So there are two possibilities:

      • (Less likely) She is lying and Comcast did release the subscribers’ information. If this is the case, what I call the “turnip test” resulted in a negative. “Turnip test” is a half-assed investigation of subscribers’ assets — to decide whether a drop of blood can be squeezed from the defendant. In most cases the trolls drop broke folks, students, handicapped, elderly and military, yet it is not always the case — because their investigations, as I said, is half-assed.
      • (More likely) The subscribers contacted the troll on their own initiative and convinced Malibu to drop their cases because they are small businesses with open wi-fi, students, handicapped, elderly or military. I generally don’t recommend contacting the troll directly, but if the subscriber belongs to one of the listed categories, confident, has nothing to lose and capable of damaging Malibu’s already shitty public image, he/she can give it a try.
  1. Mysterious Dismissals?

    Let me speculate that the trolls need to show Judge Alsup some progress, so they are dismissing cases. It’s an excellent way to avoid fighters that would give the lie to their game.

  2. If anyone is keeping track, another 27 filed recently on 11/24/2015, Thanksgiving week:

    1 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 24.130.55.186 3:2015-cv-05383 11/24/2015
    2 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 24.130.61.195 3:2015-cv-05384 11/24/2015
    3 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 24.23.254.134 3:2015-cv-05385 11/24/2015
    4 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 24.4.56.29 3:2015-cv-05386 11/24/2015
    5 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 50.161.74.133 3:2015-cv-05387 11/24/2015
    6 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 50.168.53.72 3:2015-cv-05388 11/24/2015
    7 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 50.184.17.94 3:2015-cv-05389 11/24/2015
    8 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 50.184.212.193 3:2015-cv-05391 11/24/2015
    9 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 67.169.83.102 3:2015-cv-05394 11/24/2015
    10 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 67.180.196.218 3:2015-cv-05395 11/24/2015
    11 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 67.188.33.175 3:2015-cv-05397 11/24/2015
    12 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 71.202.112.89 3:2015-cv-05398 11/24/2015
    13 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 73.162.252.58 3:2015-cv-05399 11/24/2015
    14 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 73.202.86.6 3:2015-cv-05400 11/24/2015
    15 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 76.102.58.190 3:2015-cv-05401 11/24/2015
    16 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 76.103.9.134 3:2015-cv-05402 11/24/2015
    17 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 76.126.119.203 3:2015-cv-05403 11/24/2015
    18 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 76.126.250.74 3:2015-cv-05404 11/24/2015
    19 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 76.21.69.22 3:2015-cv-05405 11/24/2015
    20 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 98.207.234.49 3:2015-cv-05406 11/24/2015
    21 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 98.210.169.17 3:2015-cv-05407 11/24/2015
    22 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 98.234.125.131 3:2015-cv-05408 11/24/2015
    23 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 98.234.152.80 3:2015-cv-05409 11/24/2015
    24 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 98.234.248.15 3:2015-cv-05410 11/24/2015
    25 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 98.234.44.160 3:2015-cv-05411 11/24/2015
    26 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 98.248.153.181 3:2015-cv-05412 11/24/2015
    27 Malibu Media, LLC v. JOHN DOE subscriber assigned IP address 98.248.49.36 3:2015-cv-05413 11/24/2015

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