I was writing an update to one of my posts about the copyright trolling situation in California, but one particular paragraph of today’s Judge Alsup’s order swayed me into writing a separate article (spoiler: this paragraph is cautiously encouraging).

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Today the judge issued an order addressing motions to dismiss and to quash in four CAND cases: 15-cv-04170 (pro se), 15-cv-04289 (pro se), 15-cv-04291 (Curtis Edmondson), 15-cv-04441 (Curtis Edmondson). All the motions were denied. However, the judge found that Curtis Edmondson’s argument (that Malibu improperly uses the term “bit”) was not without merit, and the plaintiff was ordered to amend its complaints in two cases:

Malibu Media does not necessarily need to use the terms “piece,” “sub-piece,” or “block” in its more definite statement, but it should use terminology that a person familiar with the BitTorrent protocol would understand without the likelihood of confusion with some other relevant term of art. Additionally, this order only requires a more definite statement in Case Nos. 15-4291 and 15-4441; however, Malibu Media would be wise to consider amending its complaints in other cases going forward to reflect the clarification called for by this order.

This command to amend two particular complaints may sound insignificant, but anything that causes more work for the troll is welcomed: I don’t see why other defendants wouldn’t want to demand a similar clarification.

It was a pleasant surprise to see the famous Judge Wright’s “essentially an extortion scheme” quote in this order. You may remember the part of this quote where Judge Wright justified his denial of an ex-parte discovery in a multi-Doe Malibu case 3 1/2 years ago, effectively ending Lipscomb’s terror in the Central District of California:

By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement — making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it.

Obviously, none of today’s cases is a mass-defendant one, thus the above line of argument is hardly applicable here. However, Judge Alsup noted that he was “conscious of the potential for abuse”:

Here, by contrast, Malibu Media is proceeding “the old-fashioned way” — it has filed each of its 146 actions against individual defendants and paid a filing fee in each. The Court is conscious of the potential for abuse in Malibu Media’s strategy and has imposed a protective order forbidding the disclosure of any defendant’s identifying information to protect defendants from the specter of embarrassment.

A motion to quash filed by one of the pro se defendants, a 80-year old landlord, was based on the undue burden argument, and, unsurprisingly, it was denied (“[T]he ‘undue burden’ language is limited to harms inflicted by complying with the subpoena”).

This defendant, as well as the other pro se, also vehemently denied that they had anything to do with torrenting X-Art’s pornography. This argument was found premature. Not unexpected either.

Finally, quoted below is the best part of this order: a paragraph, in which Judge Alsup expresses his skepticism about the strength of the 146 lawsuits that have been clogging his docket for 6 months. It is significant that the judge found it necessary to include this paragraph, which is essentially a veiled warning that the troll won’t be able to get away with its usual bluffs in this judge’s courtroom — the usual bluffs that have been keeping the majority of the courts across the country hypnotized over the last four years.

To be clear, this order only holds that Malibu Media has met the low standard of plausibility. Evidence that a defendant copied or distributed only a single piece of a video is weak evidence that the defendant copied the whole file (especially given the complexity of the circumstances of Malibu Media’s collection of that evidence). Registration of a video with the Copyright Office is only prima facie evidence of the copyrightability of that work¹. Moreover, the mere fact that an individual is the subscriber for a particular IP address is weak evidence that he, rather than a third party, actually committed the alleged infringement even if the alleged infringement occurred habitually. Malibu Media faces significant hurdles when it comes to proving its case on the merits, but it has met its burden at the Rule 12 stage.

 

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¹ Given that a porn film may not copyrightable only in limited circumstances (for instance, child porn), this judge’s innuendo is rather interesting.