Guardaley | X-Art

Appellate brief filed in a Malibu Media case after the troll cuts and runs to avoid compensating wrongly accused

At the end of a case, although a litigant may be disappointed in the outcome, he should still leave the courthouse feeling that he has been treated fairly.
From the opening brief in CA6 16-3628

As I wrote in my 6/11/2016 post “Righting the wrongs: Malibu Media defendants appeal bad rulings,” in Malibu Media v [John Doe] (OHSD 14-cv-00821), a competent defense by Booth Sweet caused the troll to cowardly cut and run, i.e. after plaintiff’s walk-away offer was rejected by the defendant, Malibu moved to dismiss the case without prejudice — to avoid paying loser’s fees.

To our astonishment, Magistrate Judge Terence P. Kemp allowed the dismissal, ignoring well-documented and well-presented evidence of plaintiff’s discovery shenanigans. The order reads like the judge was annoyed by aggressiveness of the defense and simply wanted this case out of the docket — damn the merits.

Initially the opening brief was due on 8/3/2016. However, the deadline was extended a couple of times because the defendant requested the district court to supplement the record with the statements of proceedings: i.e., to put in writing what happened during two phone conferences.

After the district court satisfied the defendant’s requests, no more extensions were allowed, and the opening brief was finally filed today.

Denying any chance of recovery under § 505 after Malibu voluntarily dismissed its suit provides an escape hatch encouraging abusive behavior and vitiate the application of § 505 where it is needed most, and leaves [John Doe] nothing but a pyrrhic victory in a meritless case.

As discussed above, when confronted with a meritless suit, defendants face the dilemma of settling for anything less than the cost of litigation or litigating at great expense. Malibu has further leveraged the lopsided, upfront costs of discovery with the goal of forcing early settlements while assuming little risk. The possibility of incurring fees under § 505 has the potential to help balance the litigants’ positions and discourage meritless suits. Problem is Malibu starts with the conclusion a defendant is the infringer, then works backwards ignoring or discounting anything that does not fit that narrative.

Disallowing [John Doe]’s potential recovery after a voluntary dismissal eliminates any chance of balance, especially where the most abusive litigation strategies always end in settlement or dismissal before trial. Such a result is manifestly unjust and would all but force defendants like [John Doe] to settle regardless of the underlying merits of the case.

In addition to the claim that the court abused its discretion “to grant voluntary dismissal based on findings of fact without citations to the record, and for which there is no credible evidentiary support,” the defendant also contests earlier dismissal of his non-infringement counterclaim, quoting Judge Alsup’s well-reasoned recent decision to keep an identical counterclaim alive.

As it is always the case with Jason Sweet’s pleadings, this brief is easy to read even for a lay person. As for the bittorent defense attorneys, I hope this document provides new facts and ideas aimed at defeating the troll.

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11 responses to ‘Appellate brief filed in a Malibu Media case after the troll cuts and runs to avoid compensating wrongly accused

  1. 90 pages–better get some popcorn.
    I did a quick search–pity there’s nothing tying MM to #Prenda in here. I know, I know–appeals cannot bring up new stuff not argued in trial court.

  2. Sweet has a very valid point in the fact that the trolls game these lawsuits to extract a settlement and when they come up against it they voluntarily dismiss to avoid costs.

    Prenda used this tactic, Voltage uses this tactic and so does MalibuMedia it is plain out an abuse of the court system IMHO and I get that the courts are short staffed, under funded and overburdened but the fact that the courts are allowing the trolls to abuse the system with these type of lawsuits shows us that some jurisdiction are just rubber stamping these cases along and the trolls just keep filing and filing cases in troll friendly courts.

    IMO judges that are actually paying attention in these cases know exactly what is going on and what the trolls are up to, you can look at cases in Oregon and California as prime examples of the trolls getting some push back and the Judges of some of these courts sending a message to the trolls that they are not going to have a free for all in their districts if the cases land on their docket.

    Some defense counsels have plainly pointed out to Judges what is going on and had strong evidence to prove their point in my mind that what the trolls allege just was not so. the Lamberson case is a strong indication of that but yet the trolls were hit with costs but the Judge took it no further than that, and I found that troubling, because it would seem to me there was more than enough there for the Judge to give the trolls a serious Judge Wright like spanking.

    This case is a travesty in m y mind that the Judge dismissed the Doe’s evidence and fee request and I agree with what SJD wrote that the judge seemed annoyed by it all. This puts any defendant who get’s sued by those with deep pockets at distinct advantage to mount an offensive against a troll.

    The trolls have been playing the odds and have the system gamed, and in my opinion while this doesnt have all the hallmarks of a Prenda its damn close to it. It’s high time that the FBI and USDOJ and state AG’s investigate this scheme and how it is being perpetrated across U.S.

    I hope the appeals court will look at this a little more closely and see there were some wrongs made to the Doe, but we will have to wait and see. I cant wait to see the temper tantrum filled reply from Malibu filled with the usual filler and horseshit

  3. I like how Jason calls out troll’s pattern of crying that the sky is falling (“worst of the worst infringer!”, “our porn business is doomed!”), and then suddenly losing interest when it becomes clear that either there is no way to squeeze a drop of blood from the turnip or the defendant pushes back.


    If Malibu’s allegations of irreparable harm were ever bona fide its new assertion betrays it. Ultimately, Malibu either lied to the court when it asserted that it was suffering irreparable harm arising from [John Doe]’s actions […], or lied to the court when it says it is not all that important to stop that activity. […]

    It is an offense to equity to permit Malibu to disavow prosecution of its “continuing harm” claims, which it addressed to this court’s equitable powers, on pre-textual grounds and absent any credible explanation for “what happened” to that previously intolerable harm. […]

  4. I hope this results in an epic smackdown of the judge. He basically told [John Doe]: “you aren’t like the others, case dismissed!”. It’s worse than the federal circuit with its “no patent left behind” program!

    I also have my suspicions about the Prenda tie-in… remember there’s lots of wonderful evidence of Malibu behaving just like Prenda being promulgated by Edmonson law out in California right now in front of Judge Alsup — the same one that can write a bit of Java. That would fall under new evidence.

  5. Not a lawyer here, so I may be barking up the wrong tree.

    Was the circuit judge TRYING to keep this suit alive? From where I sit, it looks like the judge took every opportunity he could to decide in favor of MM, and just let them string things along, instead of either putting up or shutting.

    • Your impression of the judge here is shared…on [John Doe]’s brief, it looks a great deal like the judge had decided that the internet detection technology was infallible, and had decided [John Doe] was clearly guilty like all the others and needed punishing, so why didn’t he settle???

      This is the same Hamilton county that went after Larry Flynt, in case you aren’t an elephant with a very long memory. It also went after the local community radio station (WAIF) when a certain obnoxious program about lubricants that might be needed to produce pornographic movies was aired, and lost, but I date myself. Even then, the police had a reputation for mistreating folks violently.

      I don’t think “due process” goes far for folks in Cincinnati who aren’t the right people or who don’t live on the right side of the tracks. Just ask the poor black folks when they are protesting in the streets!

  6. Response posted on 1/19 – 60 pages of vomit. Mostly the same argument as the lawsuit and why Malibu was justified in the late stage dismissal and why the Judge correctly did not assign attorneys fees to the defendant. Your Honor, our tech is perfect but yet when it’s not you should not hold us accountable. These bums, and everyone like them, need to be held accountable when they are proven wrong.

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