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Archive for March, 2012

This is concerning. As we discussed in our
New “Copyright Troll” on the Block article earlier this month, Malibu Media, LLC has continued to add to their number of lawsuits filed up and down the U.S. Since our last posting, the following cases have been added to an already long list.

New York Eastern District Court – Jason Aaron Kotzker of the Kotzker Law Group
(I guess he can be both in Colorado AND in New York at the same time; perhaps he has a transporter in the law office in his Colorado basement that we don’t yet know about.)
Malibu Media, LLC v. John Does 1-10 (Case No. 2:12-cv-01146)
Malibu Media, LLC v. John Does 1-26 (Case No. 2:12-cv-01147)
Malibu Media, LLC v. John Does 1-20 (Case No. 2:12-cv-01148)
Malibu Media, LLC v. John Does 1-30 (Case No. 2:12-cv-01149)
Malibu Media, LLC v. John Does 1-11 (Case No. 2:12-cv-01150)
Malibu Media, LLC v. John Does 1-13 (Case No. 2:12-cv-01156)

Malibu Media, LLC has developed a new “method” of determining how to calculate settlement amounts that has given them a way of justifying settlements that could be in the $7,500 range, or even in the $13,500 range.

Instead of charging a certain settlement amount per case as many plaintiffs have done in the past, Malibu Media, LLC is charging per video allegedly downloaded. Obviously I am simplifying, as there are a number of other factors to weigh in their “secret sauce” (e.g., number of infringements, whether it was only one time a user downloaded a title, or whether infringement is ongoing) in order for them to increase your settlement amount.

The problem with Malibu Media, Inc. is that their cases allege not one file downloaded at a time, but WEBSITE RIPS — in other words, a huge multi-Gigabyte (e.g., 2.3GB) download containing a large number of their videos. Defendants in Malibu Media, Inc. cases will not be casual pornography downloaders or people who like to “click on stuff,” but rather, their John Doe Defendants will be serious collectors of pornography.

To make matters worse, the entity behind the Malibu Media cases has authorized its attorneys to name and serve many more downloaders than their other companies have done thus far. “Naming” defendants have been an occasional and noteworthy occurrence. Here, it looks like it will be a “shoot first, ask questions later” approach of “name often, and name early.”

For many defendants who are obviously not guilty, when the settlement is low (e.g., in the $2K range), settling in the past has been a way to make these cases quickly go away, because it would cost more to hire an attorney to mount a de minimus/barebones defense (assuming there was such a thing and assuming it was ethical for an attorney to do this) than it would cost to settle. However, where settlements start creeping into the $7K, $8K, $10K range, I have no doubt that we might start advising that it makes more financial sense to stand up and fight.

The problem is that no defendant knows whether they have one instance of infringement against them, or ten instances of infringement until they face their opponent [and you know I believe it is a very baad idea (spelling intentional) to face an opponent suing you without having your attorney face them for you.]

In the meantime, other strategies of defense are still in play. There is no reason a defendant needs to immediately consider settling as soon as they receive a letter from their ISP. And while the plaintiff might be the same Malibu Media, LLC troll company, each local counsel has his strengths (eagerness to name defendants in federal court) and weaknesses (running his law practice from his basement). It is my job as your attorney to learn who is who — who is a threat, and who is not. From there, you can determine how serious of a threat cases in your home federal court really are.

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For those bittorrent users accused of copyright infringement in Arizona, there is a new rule which you can use in your defense.

Traditionally, in order to properly sue multiple bittorrent users together in one lawsuit, they need only to participate in the “same transaction or occurrence.”  In other words, they need to do the same “crime” at the same time.  Not so in California, and NOW, not so in Arizona.  [For the California citation, see Document 26 in the Hard Drive Productions, Inc. v. Does 1-188 (Case No. 3:11-cv-01566) case in the U.S. District Court for the Northern District of California.]

In bittorrent language, when you connect to a bittorrent swarm and download copyrighted media, all of you participating in that bittorrent swarm would be sued together.  This is one of the most recent kinds of lawsuits by the more skilled plaintiff attorneys — instead of Plaintiff v. John Does 1-123 (or however many John Doe Defendants there are lumped together [and separated by the state in which they reside] in this lawsuit), smarter plaintiffs are suing participants of the swarm itself (e.g., Plaintiff v. Swarm of Nov. 3rd, 2011 [and participants thereof]).  No longer in in Arizona.

NEW RULE: Now in Arizona, in order to be sued with other John Doe Defendants, you must have either UPLOADED TO or DOWNLOADED FROM each one of the other defendants.  If not, the defendants are not properly joined and defendants can be severed and dismissed from the case for improper joinder.

TODAY in the Patrick Collins, Inc. v. John Does 1-54 (Case No. 2:11-cv-01602) case in the U.S. District Court for the District of Arizona, in U.S. District Judge G. Murray Snow’s own words:

Plaintiff alleges that the two remaining Defendants “participat[ed] in the BitTorrent swarm with other infringers” but does not claim that John Doe 6 provided data to the former John Doe 12 or vice versa. (Doc. 26 ¶ 56). …

… Plaintiff alleges no facts that these two particular Defendants shared data with each other, and provides data instead that they were logged on to BitTorrent weeks apart. “The bare fact that a Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world.” Hard Drive Prods., Inc. v. Does 1–188, 11 No. CV-11-01566, 2011 WL 3740473, at *13 (N.D. Cal. Aug. 23, 2011)

(emphasis added).

Personal Note: While this ruling is not immediately relevant if you do not live in Arizona, it is still good news because it indicates that judges are starting to understand how rules (here, the rules of “joinder”) apply in the bittorrent context.  No doubt, this order will be recognized and used in other cases in other jurisdictions as being persuasive as to how a judge should understand who can be sued together with whom.  Soon it will no longer be permitted for an enterprising plaintiff (e.g., “copyright troll”) to sue tens or hundreds of defendants in one lawsuit, lumping them together by the state in which they live (this lumping-together-by-state was the result of the dismissals last year over personal jurisdiction issues).  I look forward to other judges in other states soon to adopt this ruling.  It is a well thought-out understanding of the joinder issue.

I have pasted the link to the order below for your enjoyment.

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*** UPDATE (3/13, 11:45am CST): I might need to backpedal a bit here. I received word from an attorney who had ears in yesterday’s hearing that Judge Forrest is not going to bust these cases as I thought she would. The reason for the consolidations is to treat them as one larger case so that the rulings in each of the cases will be consistent throughout his many cases. I am editing yesterday’s blog posts with cross-outs (example) and underlines (example) so you can see where I am changing the tone of the blog post from overly optimistic to slightly somber. I will obviously post about the judge’s order [UPDATE 3/14: HERE – see comments below for commentary] once it becomes available. ***

*** UPDATE (3/12): As we initially discussed last week, *new cases* have been handed over to Judge Forrest so that she can adjudicate the smaller bittorrent cases together. I have added them to the list below. They are not yet listed as part of the “consolidated” case list (in Case No. 1:11-cv-09705), but if you look at the case dockets for each case, the notations that Judge Forrest is now handling them should tip you off that these cases too are now in trouble are now under her scrutiny. ***

New Cases Now Handled By Judge Forrest:

Combat Zone Corp. v. Does 1-63 (Case No. 1:11-cv-09688)
Digital Sin, Inc. v. Does 1 – 179 (Case No. 1:11-cv-08172)
Media Products, Inc. v. Does 1-55 (Case No. 1:11-cv-09550)
Media Products, Inc. v. Does 1-36 (Case No. 1:12-cv-00129)
Media Products, Inc. v. Does 1-142 (Case No. 1:12-cv-01099)
Next Phase Distribution, Inc. v. Does 1-138 (Case No. 1:11-cv-09706)
Patrick Collins, Inc. v. Does 1-115 (Case No. 1:11-cv-09705)
SBO Pictures, Inc. v. Does 1-92 (Case No. 1:11-cv-07999)
SBO Pictures, Inc. v. Does 1-154 (Case No. 1:12-cv-01169)
Third Degree Films, Inc. v. Does 1-216 (Case No. 1:11-cv-09618)
Third Degree Films, Inc. v. Does 1-217 (Case No. 1:11-cv-07564)
Zero Tolerance Entertainment, Inc. v. Does 1-56 (Case No. 1:11-cv-09703)

This is obviously relatively good news for the roughly 1,200+ John Doe Defendants who can now breathe a bit more easily knowing that their plaintiff attorney’s cases are in trouble because 1) we now know that the judge is VERY aware of the MANY cases pending against the many Doe Defendants, and 2) rulings across the board will now be consistent — you will no longer have one judge letting one bittorrent case move forward, and another judge dismissing his bittorrent case for lack of joinder or improper jurisdiction. You can read about the judge’s order regarding the original consolidated cases in our “New York Judge consolidates and freezes SMALLER BITTORRENT CASES for plaintiff attorney” article. No doubt similar orders will in time be written for these additional cases.

On a related note, Judge Forrest is not the only New York District Judge who has figured out what is going on with these copyright infringement (“copyright troll”) cases.

Judge Colleen McMahon (no doubt these judges talk to each other about their cases) has issued an order in two cases (so far; response due 3/30) demanding that Mike Meier tell the court why his cases should not be dismissed due to the inherent joinder issues in his cases (e.g., how bittorrent users can be sued together under the theory that they committed the “same crime at the same time” theory [when according to the plaintiff's complaint, the bittorrent users committed the illegal act of downloading and/or seeding the copyrighted materials sometimes weeks if not months apart]).

What I enjoyed most in the order was that Judge McMahon accused Mike Meier of [essentially] CHEATING the court out of the $350 fees for each of the 138 defendants (e.g., theft from the court of $47,950) who, according to the judge’s opinion should have been sued in SEPARATE cases. In addition, she states that the “misjoinder has resulted in an undercounting of the number of cases filed in this court and a concomitant distortion of the size of the court’s docket.” To make matters laughable, in response to a request from Mike Meier regarding one of the cases, she wrote, “[u]ntil I have decided whether joinder of these 139 defendants is proper-which I very much doubt-there will be no discovery. Motion denied. Get to work on responding to any order to show cause.”

Cases involved:

Patrick Collins, Inc., d/b/a Elegant Angel v. John Does 1-139 (Case No. 1:12-cv-01098)
Media Products, Inc. v. Does 1-59 (Case No. 1:12-cv-00125)

I don’t know about you, but when a judge accuses you of stealing $47,950 from the court, wouldn’t you worry that your cases won’t win? I expect to see more of these in the coming days and weeks with his other cases. More significantly, I’d be surprised if I saw any more filings from Mike Meier in the Southern District of New York. The last thing a copyright troll wants is a judge as an enemy who aggressively goes after his cases.

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There seems to be a new production company who has decided that it is a better business model for them to start suing internet users (e.g., copyright trolling) rather than selling their cheap flicks on the internet one by one. The company name is Malibu Media, LLC, and while the actual “film” allegedly downloaded probably varies from case-to-case, it appears as if “Tiffany Teenagers in Love” seems to be the primary title they are using in their lawsuits.

What surprises me is that while this is a new “troll” (using the term loosely,) the local counsel they are using suggests to me that the same entity [behind the Patrick Collins, Inc., K-Beech, Inc., NuCorp, Inc., Raw Films, Ltd., Zero Tolerance, etc. cases] is also behind this case. In other words, this is simply a new client climbing on the bandwagon looking to cash in on the ongoing mass extortion scheme. The rules, however, have not changed.

Pasted below is a list of the cases, separated by the court in which the case was filed in, and who the local counsel is. I have dealt with each one of these guys before, so as far as I am concerned, this is just one more troll to add to the list of companies who are suing defendants.  I have included the newer filings of Raw Films, Ltd. to show that these are the same attorneys.

California Central District Court – Adam M. Silverstein of Cavalluzzi & Cavalluzzi

Malibu Media LLC v. John Does 1-10 (Case no. 2:12-cv-01647)
Malibu Media LLC v. John Does 1-10 (Case no. 2:12-cv-01675)
Raw Films, Ltd. v. John Does 1-10 (Case no. 2:12-cv-01653)

Virginia Eastern District Court – David / Wayne O’Bryan of O’Bryan Law Firm

Malibu Media, LLC v. John Does 1-26 (Case no. 1:12-cv-00160)
Malibu Media, LLC v. John Does 1-26 (Case no. 1:12-cv-00161)
Malibu Media, LLC v. John Does 1-15 (Case no. 1:12-cv-00163)
Malibu Media, LLC v. John Does 1-27 (Case no. 1:12-cv-00165)
Malibu Media, LLC v. John Does 1-08 (Case no. 1:12-cv-00166)

California Southern District Court – Adam M. Silverstein of Cavalluzzi & Cavalluzzi

Malibu Media, LLC. v. John Does 1-13 (Case no. 3:12-cv-00358)
Malibu Media, LLC v. John Does 1-25 (Case no. 3:12-cv-00362)
Malibu Media, LLC. v. John Does 1-15 (Case no. 3:12-cv-00369)
Raw Films, Ltd. v. John Does 1-11 (Case no. 3:12-cv-00368)

Colorado District Court – Jason Aaron Kotzker of Kotzker Law Group

Malibu Media, LLC v. John Does 1-29 (Case no. 1:12-cv-00397)
Malibu Media, LLC v. John Does 1-16 (Case no. 1:12-cv-00399)
Malibu Media, LLC v. John Does 1-30 (Case no. 1:12-cv-00402)
Malibu Media, LLC v. John Does 1-10 (Case no. 1:12-cv-00405)
Malibu Media, LLC v. John Does 1-27 (Case no. 1:12-cv-00406)
Malibu Media, LLC v. John Does 1-18 (Case no. 1:12-cv-00407)
Malibu Media, LLC v. John Does 1-15 (Case no. 1:12-cv-00408)
Malibu Media, LLC v. John Does 1-27 (Case no. 1:12-cv-00409)

District Of Columbia District Court – Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC

Malibu Media LLC v. John Does 1-5 (Case no. 1:12-cv-00233)
Malibu Media LLC v. John Does 1-16 (Case no. 1:12-cv-00235)
Malibu Media LLC v. John Does 1-11 (Case no. 1:12-cv-00237)
Raw Films, Ltd. v. John Does 1-3 (Case no. 1:12-cv-00234)
Raw Films, Ltd. v. John Does 1-19 (Case no. 1:12-cv-00236)

Pennsylvania Eastern District Court – Christopher P. Fiore of Fiore & Barber LLC

Malibu Media LLC v. John Does 1-15 (Case no. 2:12-cv-00664)
Malibu Media LLC v. John Does 1-17 (Case no. 2:12-cv-00665)
Malibu Media LLC v. John Does 1-10 (Case no. 2:12-cv-00666)
Malibu Media LLC v. John Does 1-11 (Case no. 2:12-cv-00667)
Malibu Media LLC v. John Does 1-22 (Case no. 2:12-cv-00668)

On a personal note (obviously not legal advice, as each plaintiff above handles cases differently, and each person’s situation is different): We have seen these attorneys before in other cases. If you receive a copy of a subpoena from your ISP indicating that you have been implicated as a John Doe Defendant in any one of these cases, you’ll probably be instructed in the letter to file a motion to quash. As you know from my MANY articles on this blog, you know my opinion that such motions have been a waste of time for defendants (e.g., plaintiff attorney will claim that because you are not yet “named” as a defendant, you have no “standing” to file such a motion, etc., etc., etc.). More likely than not, you will not receive a letter from your ISP, and one of their creditor-like “bulldogs” will begin calling you and threatening to name you as a defendant unless you settled your case against them. They will make up odd numbers on the spot as to how much their “client” will settle for, but remember, these guys and gals (who often do not even sound sober and are probably sitting in a cubicle somewhere reading you a script) are not attorneys and likely do not have authority to settle your case. If you have spoken to me, you know my opinion is that 1) they shouldn’t even be calling you in the first place, and 2) you should not be discussing your case with them.

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Within the same breath of learning that Copyright Enforcement Group’s (“CEG”) attorney Mike Meier will be taking over Terik Hashmi’s Northern District of Florida bittorrent cases, in a twist of comedic tragedy for plaintiff attorney Mike Meier, I learned that FIVE of his Southern District of New York cases have been joined together, and “additional cases [perhaps all of his other bittorrent cases] may also be “deemed related” and transferred [to this judge] in the near term.” (emphasis added).

In other words, riddle me this:

Question: “How do you kill many small bittorrent cases, when each case only has just a handful of defendants?”

Answer: You BUNCH THEM TOGETHER into one case and you kill them all at the same time.

The following cases (so far) have now been joined (and are now consolidated under Case No. 1:11-cv-09705 in the U.S. District Court for the Southern District of New York):

THIRD DEGREE FILMS, INC. v. DOES 1 – 217 (1:11-cv-07564-JGK, or “11 Civ. 7564″);
DIGITAL SIN, INC. v. DOES 1 – 179 (1:11-cv-08172, or “11 Civ. 8172″);
MEDIA PRODUCTIONS, INC. v. DOES 1-55 (1:11-cv-09550, or “11 Civ. 9550″);
THIRD DEGREE FILMS, INC. v. DOES 1 – 216 (1:11-cv-09618, or “11 Civ. 9618″);
ZERO TOLERANCE ENTERTAINMENT, INC. v. DOES 1 – 56 (1:11-cv-09703, or “11 Civ. 9703″)

In District Judge Katherine B. Forrest’s order, she states:

“it is hereby ORDERED that the parties shall cease all discovery-related activity in the above-captioned cases until otherwise ordered by this Court.”

In other words, if your ISP has not yet handed out your information, I strongly suggest that you send them a copy of this order and stop them from handing out your information. If you are a defendant in this case, I would hold off until their next status conference before doing anything, which is scheduled for March 12th, 2012, 3pm.

Once again, other plaintiff attorneys should sit up and take notice.

As for Mike Meier, well, if his New York cases go bust, at least he now has Terik Hashmi’s cases to fight in Florida. At least they are merged together under Case No. 4:11-cv-00570 (FLND) and are under an order to show cause by March 9, 2012 why they should not be dismissed. With Mike Meier taking over Terik’s cases and a letter to the court throwing Terik under the bus, perhaps those Florida cases may survive.

In the meantime, it looks like Lady Justice has a sense of humor. Perhaps Mike’s cases got “infected” as soon as he agreed to take over Terik’s FL cases. At the very least, it’s poetic justice.

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On Friday I wrote a scathing review of the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case dismissal, but I did not post it.  In short, congratulations to the Cashman Law Firm, PLLC clients (and all the others implicated in this case) who have been dismissed from the case.

The difficulty I am facing is that while being dismissed is the goal of any John Doe defendant in a bittorrent case, in my opinion, I am uncomfortable with the way the dismissal happened. 

As many of you know, there was new precedent set by Judge Facciola’s ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case, and as a result, Judge Reggie Walton gave the plaintiffs until March 9th, 2012 to start naming or dismissing defendants.  In short, instead of admitting improper jurisdiction, yet another D.C. judge opted to invoke the Federal Rules of Civil Procedure, Rule 4(m) which gives plaintiffs 120 days to either name or dismiss defendants.  Understanding that the Prenda Law Inc. plaintiff attorneys had no interest in continuing the lawsuit against individual Doe defendants, they dismissed the case.

Now while it is always nice when opposing counsel opts to kill a case rather than move forward against defendants, Prenda Law Inc.’s local counsel revealed more than he probably should have to the court.  In a move which probably angered Paul Duffy and his superiors, Tim Anderson wrote the following paragraph:

Plaintiff acknowledges the Court’s busy docket; Plaintiff is currently engaged in settlement negotiations with a substantial number of putative Doe Defendants.  Rather than prematurely initiate litigation against individuals who may ultimately wish to resolve Plaintiff’s claims via settlement — and thus needlessly burden the Court — Plaintiff believes that dismissing the claims against the remaining non-settling Doe Defendants in this action without prejudice in lieu of filing actions against non-settling individuals strikes a favorable balance between preserving Court resources and safeguarding its intellectual property rights.

In other words, “Court, we are dismissing the case so that you do not need to waste your time looking over us watching what we are doing.  We would prefer not to have you watch us anyway because you will force us to do something we don’t want to do (e.g., “name” defendants), which would make our extortion scheme much more costly to us and thus we wouldn’t be able to sustain our operation if we had to actually go after defendants.  So thanks to you, since we now have all the names we need from the ISPs of the putative Doe Defendants, we will continue to call and harass those who haven’t settled without having you worry about what we are doing.”

In short, I would have liked to see the judge issue an order indicating that since they have dismissed the case, they are no longer permitted to use the names they acquired from the subpoenas and collect settlements from putative defendants.  The legal system is not a tool to discover private information about internet subscribers only to dismiss the case and continue their extortion scheme offline.

For this reason, I suspect that you understand why I am not so happy with this case dismissal.  Getting your names only to dismiss the action was simply part of their plan all along.

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