When a copyright troll Malibu Media (X-Art) re-infested California in September 2015, Northern District’s Chief Judge Phyllis Hamilton ordered all Malibu’s cases, including any future ones, to be assigned to Honorable William Alsup – one of the most thorough and technically literate federal judges. I was pleased with this development, and my gut feeling didn’t betray me: for the last 18 months, Judge Alsup, while reluctantly permitting ex-parte discovery, has been giving X-Art and its lawyers a hard time, apparently clearly understanding Malibu’s get-quick-rich-at-expense-of-ruined-families scheme.

I covered this judge’s disdain for the shakedown scheme on more than one occasion on Twitter and in this blog:

• 03/11/2016: Judge Alsup denies defendants’ motions while expressing doubt about the strength of Malibu Media’s lawsuits
• 04/06/2016: Judge Alsup benchslaps Malibu Media’s attorneys, kills 15 cases
• 06/22/2016: Judge thwarts copyright troll’s sneaky practice of securing safe retreat from potentially meritless lawsuits
• 06/20/2016: Judge Alsup questions accuracy of Malibu Media’s geolocation technology, stays subpoena

In the follow-up to the last blog post listed above I analyzed the case dismissal pattern in the neighboring district (CASD), arguing that Malibu’s geolocation tech accuracy claims are statistically impossible. I opined that Malibu’s lawyers are playing games when judges ask uncomfortable questions.

It looks like my concerns were finally shared by Judge Alsup: today the judge issued a tersely worded order to show cause in Malibu Media v John Doe (CAND 16-cv-05975), maybe the harshest of all his copyright trolling-related orders to date:

Malibu Media now moves to continue the case management conference in this action, which is currently set for May 18 at 11:00 a.m. because it only received defendant’s identifying information on April 23, and has not yet had time to serve the summons and complaint, the deadline for which is May 28.

That request is DENIED. Instead, Malibu Media is hereby ordered to SHOW CAUSE at that hearing, why the Court should not bar further Malibu Media cases in this district until the accuracy of the geolocation technology is fully vetted. Malibu Media shall file a written statement, with all factual assertions supported by declarations sworn under the penalty of perjury by MAY 16 AT NOON.

To be clear, this order applies even if Malibu Media voluntarily dismisses this action.

The reason behind the judge’s irritation is a recent dismissal of more than half of the cases from the “fourth wave in a monsoon of two-hundred thirty-five actions that Malibu Media has filed in this district in the past eighteen months”: 37 out of 57 cases were dropped without any explanation, which likely killed any remaining benefit of doubt:

Malibu Media’s voluntary dismissal without prejudice of groups of its cases is not a new pattern. A sizable portion of the cases from previous waves were terminated in the same way. The practice has just become more frequent, and it follows skepticism by the undersigned judge and others around the country about the accuracy of the Maxmind database. See Malibu Media, LLC v. Doe, No. 16-01006, 2016 WL 3383830, at *3 (N.D. Cal. June 20, 2016) (collecting cases); cf. Kashmir Hill, How an Internet Mapping Glitch Turned a Random Kansas Farm into a Digital Hell, Fusion (Apr. 10, 2016, 10:00 A.M.), (reporting a glitch in Maxmind’s database that mapped more than six hundred million IP addresses to a single farm in Kansas).

Will the troll continue irritating this judge or will Malibu cut and run by dismissing all the CAND cases – like Prenda did in the end of 2012, when Judge Wright called out the fraud? I bet on the latter, but only time will give us a final answer.

Copyright trolls dismiss a lot of cases immediately after receiving the subscribers’ information from ISPs. Since a plaintiff is not obliged to disclose the reasons behind each dismissal, it is impossible to see how many dismissals are caused by the German “magic box” errors and/or inaccuracy of today’s geolocation technology. However, every time a judge scrutinizes trolls’ practices, a not-so-pretty picture becomes visible through the secrecy cracks. For example, a Pennsylvania judge Paul Diamond recently ordered two different trolls (Jordan Rushie of Malibu Media and Charles Thomas of the non-porn Guardaley network) to report the case status weekly. As a result, we witnessed:

• A dismissal due to an allegedly wrong jurisdiction (Jordan Rushie)
• A dismissal of one Doe from a 5-defendant case because “Comcast could not successfully identify” him (Charles Thomas/Lee Herman)

These two errors alone warrant more scrutiny of bittorent shakedown practices. If you are a defense attorney who litigates one of bittorent infringement cases, I suggest deposing a Comcast employee tasked with subpoena processing. I suspect that the error rate is much higher than trolls want everyone to believe, and such testimony has a potential to become a heavy weapon in every troll victim’s arsenal.

Featured comment

DB, May 11, 2017 21:13:

I wonder if they have been pinned down to actually providing a response.

It seems unlikely that they will provide a forthright declaration, especially with the strong statements in their previous and current cases about the accuracy.

My guess is that they will provide a personal non-expert declaration that the technology is qualitatively “accurate”. They will avoid any reference to specific disprovable facts, such as their previous “99% accurate” statement. When pressed, they will say that time constraints prohibited a more specific response.

I don’t see them ignoring the order or skipping the hearing.

There is a slim chance they will invoke attorney-client privilege or trade secrets, and hope for endless appeals.

An eventual response will likely contain bad math. “We use three services, each of which is at least 33% accurate. If they come up with the same location, that is 99% accurate.”

Coverage

• Rob Cashman: Malibu Media California cases ordered to reveal geolocation accuracy
• Law360 (paywall): Alsup Threatens To Bar Any More Malibu Media Porn Suits
• TorrentFreak: Judge Threatens to Bar ‘Copyright Troll’ Cases Over Lacking IP-location Evidence
• The Register: ‘Judge Java’ to sueball-slinging smut studio: Test your pirate-hunting tools or walk the plank
• XBiz: Judge Threatens to Bar Future Suits Made by X-art.com’s Parent
• AVN: Judge Questions Malibu Media’s Technology Use In Lawsuits
• Techdirt: Judge Alsup Threatens To Block Malibu Media From Any More Copyright Trolling In Northern California

Updates

5/17/2017

Yesterday Malibu responded to the order, as directed.

Tl;dr: Malibu didn’t receive subscribers’ info from ISPs (Comcast and AT&T) in 22 cases (out of 57 from the October batch). Malibu claimed that:

• 3 cases were dismissed because Does settled via attorneys anonymously before ISPs responded
• In 12 cases ISPs “couldn’t identify a defendant on the basis of its data retention”
• 4 cases are open, and ISPs didn’t cough up subscriber’s info yet
• 3 cases: internal errors or no hope that ISPs still had the info

So, Malibu effectively dodged the question about Maxmind’s accuracy by saying that none of the identification failures above was about geolocation, hence the said accuracy is irrelevant here. 12 cases, in which ISPs simply failed to identify subscribers, are suspicions by themselves, regardless of the geolocation issue. Although Malibu claimed that the failure to identify those 12 cases was based on ISPs’ “data retention,” the document embedded below doesn’t corroborate such claim: the ISPs simply stated that they didn’t have the information – without any explanation:

Comcast:

AT&T

(Keep in mind that Comcast reportedly retains data for 180 days, AT&T – approximately one year):

Simultaneously with this response, the plaintiff asked the judge to seal the requested detailed explanations for each case, open or dismissed. Alsup said “OK, but also file a minimally redacted version“:

Pursuant to Civil L.R. 79-5(d)(1)(c), “a redacted version of the document that is sought to be filed under seal” must also be filed. Although Malibu Media’s submissions certainly include identifying information that warrants sealing, the vast majority of the material does not warrant sealing. Malibu Media’s motion is HELD IN ABEYANCE, pending submission of a redacted version redacting only each defendant’s personal identifying information.

Today the redacted version was filed (together with Mosesi’s declaration and the case spreadsheet). This document is huge: 798 pages (it could be compressed into fewer than 50: for each case, there is the entire subpoena accompanied by the discovery order and numerous boilerplate pages, and ISPs’ response).

The document is very interesting as it allows us to peek into the troll kitchen. Note that the claims should be taken with a big grain of salt: the attorneys had almost a week to make sure the document is as smooth as possible.

If nothing urgent happens, I plan to analyze this information over the weekend, as now I’m over capacity. I will be happy if more eyes look through the pages and let me know if they see anything interesting.

Also, today Judge Alsup reminded that tomorrow Malibu attorneys will likely have a rough day.

5/18/2017

Today’s hearing was held at 11:00 AM, according to the schedule. EFF’s Mitch Stoltz was there:

My colleague and I were at Judge Alsup’s hearing on the various Malibu Media cases this morning. Judge Alsup said he was satisfied with the material that Malibu Media’s attorney filed about how its geolocation system worked, and the judge is not going to bar Malibu from filing cases in in N.D. California. But he also said – I’m paraphrasing here – “I am not blessing your [geolocation] system as accurate. You may not go around to other judges and tell them that I approved of your system.”

We didn’t hear how every case was handled – we’ll have to wait for the docket entries – but it appears that Malibu’s attorney asked to dismiss four cases with prejudice (presumably settled) and the judge dismissed another three or four because Malibu failed to serve them. Judge Alsup is holding Malibu to a 35-day deadline for serving defendants, beginning when the ISP produces the subscriber’s name.

Malibu Media’s attorney finished off by saying he wasn’t sure whether Malibu is going to file any more cases in N.D. California, but “if they do, I’ll tell them to file in small batches and do their homework.”

My intuition is that Malibu Media will think hard before filing any more cases in this district.

5:00 PM PDT update: here is the order. X-Art dodged a bullet this time.

The Court is satisfied that Malibu Media’s recent pattern of voluntary dismissals did not relate to inaccuracies with the geolocation database it used to match the defendants’ IP addresses to this district. Accordingly, the order to show cause is DISCHARGED.

To be clear, this order does not make any findings regarding the accuracy of the geolocation technology or in any way approve its use.

Additionally, Malibu Media’s sealing motions is GRANTED.