Malibu Media targets rich neighborhoods, and introduces prejudicial character evidence into each case.

Malibu Media, LLC has been filing lawsuits across the U.S. with a fervor with one change — most of them appear to be “Single John Doe” lawsuits against defendants whom they believe have deep pockets.

In other words, it appears that Malibu is looking at the geolocation data of the various IP addresses of the so-called downloaders, and they are going after defendants who live in towns which have high value residential homes. I know this because based on the individuals who call our office, a disproportionate number of them have commented that they have multi-million dollar estates, and they were wondering whether it was ethical to target high value individuals in their copyright infringement lawsuits.

To make matters worse, Malibu Media, LLC appears to have incentivized their local counsel with financial rewards for bringing in higher settlements. In the olden days, I could have called one of their contacts directly, and within a few phone calls, I knew what kind of settlement a defendant could get based on how many “titles” or alleged instances of infringement they were accused of downloading. From there, the client and I would decide whether it made more financial sense to fight the case by waiting to be named and filing an answer in court, or whether it made more financial sense to settle the case. Malibu has complicated this process in order to provide the appearance of legitimacy for the courts. Now, they are having their local counsel negotiate the settlements themselves. This would be okay, but it is my experience that local counsel are asking for higher numbers than I know Malibu would have settled for just a few months ago. “The old settlement numbers you used to have with Malibu are no longer in effect,” one local counsel told me as she pushed for higher numbers. “We are doing this ourselves now.”

To make matters worse, when Malibu Media, LLC identifies a downloader by his IP address, they track that IP address and monitor that defendant to see what other bittorrent files that defendant is downloading (wiretap?). They continue to monitor that defendant downloading non-Malibu Media titles such as “The Walking Dead,” “Homeland,” “Breaking Bad,” often creating a list multiple pages long of “other” infringing activities that defendant has taken part in. Their logic is that because a particular defendant downloaded those other titles, he is a “serial downloader” and thus it is more likely that he downloaded their titles as well. A number of us attorneys have explained to their local counsels’ deaf ears that just because a particular IP address downloaded a number of bittorrent titles does not mean that the accused defendant is that downloader. However, even the best attorney’s understanding of the law can be clouded when money influences that attorney’s understanding of it.

On a positive note, in just a few weeks, we have seen judges rule that the “other” BitTorrent activity listed in their complaints [for works not owned by Malibu Media] is inadmissible under the Federal Rules of Evidence (“FRE”), specifically Rule 404 on “Character Evidence.” The reason for this is because “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” In other words, proving that a particular defendant is a “serial downloader” is not admissible to prove that on a particular date and time, that defendant downloaded Malibu Media’s copyrighted titles. Shame on Malibu attorneys for not knowing this.

Further, judges have ruled that introducing evidence of “other” downloads is not relevant and is actually prejudicial to the defendant, and thus that so-called evidence is not admissible to prove that the defendant downloaded Malibu Media, LLC’s titles. As one example, Judge Stephen Crocker has frozen all of Malibu Media, LLC’s cases in the Western District of Wisconsin for this very purpose (link).

In sum, messing up on the Federal Rules of Evidence and doing so on each of their “Single Doe” upper-class cases was a big mistake which they might not be able to undo.  And also on a positive note, because they have filed so many “Single Doe” cases across the country, judges across the U.S. are looking deeper into their tactics and their evidence of infringement.  See @Ddragon229′s article on the FCT website, “Winds of change begin to blow on Malibu Media” for details on the character evidence issue.

Despite this, Malibu Media, LLC continues to file lawsuits across the U.S. in alarming numbers, and in each case, they continue to file this prejudicial information of “other” downloads as their “Exhibit C” in each case. A snippet of cases filed in just the last few weeks is pasted below:

Cases filed by Chris Fiore in the Pennsylvania Eastern District:
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02858)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02859)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02867)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02868)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02854-JP)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02855-MMB)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02856-JD)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02857-SD)
Malibu Media LLC v. John Doe (Case No.2:13-cv-02863-PD)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02864-HB)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02765-MSG)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02766-MSG)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02767-WY)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02768-PD
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02769-RB)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02770-CMR)

Cases filed by Mary Schulz of Schulz Law PC in the Illinois Northern District:
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03726)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03699)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03700)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03703)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03704)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03705)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03706)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03707)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03710)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-03711)

Cased filed by Paul J. Nicoletti of Nicoletti & Associates PLLC inn the Michigan Eastern District:
Malibu Media LLC v. John Doe subscriber assigned IP address 71.238.205.92 (Case No. 4:13-cv-12231-MAG-MAR)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.42.185.159 (Case No. 2:13-cv-12210-RHC-MJH)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.4.96 (Case No. 2:13-cv-12213-SFC-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.84.236 (Case No. 2:13-cv-12214-AJT-MKM)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.60.140.87 (Case No. 2:13-cv-12216-PDB-RSW)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.62.41.133 (Case No. 2:13-cv-12217-VAR-RSW)
Malibu Media LLC v. John Doe subscriber assigned IP address 69.14.181.108 (Case No. 2:13-cv-12218-NGE-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 69.246.89.172 (Case No. 2:13-cv-12220-AJT-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 67.149.158.6 (Case No. 2:13-cv-12197-GAD-PJK)
Malibu Media LLC v. John Doe subscriber assigned IP address 67.149.89.224 (Case No. 2:13-cv-12198-PDB-MKM)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.40.123.7 (Case No. 2:13-cv-12200-GER-MKM)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.40.46.12 (Case No. 2:13-cv-12201-DPH-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.35.2 (Case No. 2:13-cv-12202-PDB-DRG)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.170.197 (Case No. 2:13-cv-12204-GAD-RSW)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.19.221 (Case No. 2:13-cv-12206-DPH-LJM)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.86.4 (Case No. 2:13-cv-12208-MOB-RSW)
Malibu Media LLC v. John Doe subscriber assigned IP address 68.42.172.154 (Case No. 2:13-cv-12209-SJM-MKM)

Cases filed by Paul J. Nicoletti of Nicoletti & Associates PLLC in the Indiana Northern District:
Malibu Media LLC v. John Doe 12 (Case No. 1:13-cv-00166-PPS-RBC)
Malibu Media LLC v. John Doe 5 (Case No. 1:13-cv-00164-PPS-RBC)
Malibu Media LLC v. John Doe 9 (Case No. 1:13-cv-00165-PPS-RBC)

PERSONAL NOTE: Even with all these cases, I have only listed 46 cases having 46 defendants. With the hundreds of filings, it becomes impossible to track and report on each case. The more I look at each of these cases, the more I feel as if they have succeeded in preventing attorneys like myself from tracking and reporting on each of their hundreds of cases. Obviously I am still here, and I am still reporting on these cases. My list of cases to track has just gotten a bit larger.

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“UNDER THE RADAR” – 122 MALIBU MEDIA, LLC FILED CASES

Malibu Media, LLC has been one of the worst offenders in these copyright trolling cases. Instead of waiting for a full download to be complete, it has been reported to me that IMMEDIATELY UPON CLICKING ON THE BITTORRENT LINK (or in other words, as soon as an internet user “joins” the bittorrent swarm, EVEN IF NOT A BYTE OF DATA HAS BEEN DOWNLOADED), ***WHAM!*** Downloaders are tagged and are sued for copyright infringement.

To make matters worse, Malbu Media, LLC is known to sue based on what is called a “Siterip” (essentially meaning that someone ripped a large set of videos from their http://www.x-art.com paid website, and posted a huge number of them into one bittorrent file). We won’t ask 1) if they’ve known about the Siterips, why they have not filed DMCA takedown notices for those Siterips, and 2) whether they were involved in the “leaking” of the various siterips (in my opinion, it is too convenient to have “Siterip #1… Siterip #2… Sitrip #12…”). In sum, clicking on the wrong torrent file link with Malibu Media, LLC as your plaintiff production company can get you sued for 25+ titles, or “hits” as they like to call them.

Now what makes these cases particularly offensive is that unlike the traditional copyright trolls who will only ask for $3,400 and settle for whatever they can get, Malibu Media, LLC will likely ask for at least a $10,000 settlement from each defendant. You see this by looking at the case names below that there appears to be only ONE defendant in each case. The reason for this is that their attorneys will tell the defendant that he’s the only one in the case, and that they’ll amend the complaint, “name” him as a defendant, and serve him with process if he doesn’t settle.

While I am against the concept of suing downloaders for the piracy of a film, I want to note that filing ONE LAWSUIT FOR ONE DEFENDANT is the proper way to do these lawsuits (and the courts will be much more forgiving based on the many filing fees paid to the court, especially since the court will not need to deal with rote procedural issues that have plagued these cases since their inception [e.g., improper jurisdiction, improper joinder]). In sum, in a case such as this one, a defendant must answer for himself the simple questions of 1) can I fight this (the answer is likely yes considering the “snapshot” methods in which they track the IP addresses relating to the downloads, along with the likely-present issues of late copyright filing dates), and 2) how would I like to proceed based on what I know about their evidence against me (based on my own network router setup and/or downloading habits)? X-art films have a very specific style and theme to them, and they attract a very specific genre of married men, one step up from those who enjoy classy soft porn. On top of this, the Keith Lipscomb IP enforcement company representing Malibu Media, LLC as their client does research on most defendants (note their mention below as “Dr. John Doe” in one of their cases to signal to the defendant that they know he has financial resources to pay a large settlement). For these reasons, it is often a simple question of EVIDENCE in determining whether to move forward with what is usually a very good defense, or whether to use that evidence we gather in your favor while attempting to negotiate a deeply discounted settlement on your behalf.

Up front, the local counsel you will read about below — Mary Schultz, Paul Nicoletti, Jon Hoppe, Leemore Kushner, Jason Kotzker, and Patrick Cerillo — are merely paid to file and fight these cases according to the instruction of Keith Lipscomb. They are merely cogs in Lipscomb’s IP enforcement machine, and in my opinion, there is no reason for anyone to be talking to them since they likely do not have authority to do anything but gather evidence, argue the cases and move them forward.

MARCH 2013 – 19 NEW CASES

Illinois Central District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01096)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01099)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01100)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01101)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01102)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02058)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02059)

Wisconsin Eastern District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00226)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00236)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00238)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00239)

Indiana Northern District Court
Paul Nicoletti of Nicoletti & Associates PLLC
Malibu Media LLC v. Joe Doe (Case No. 2:13-cv-00085)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00162)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00163)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00164)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00165)

District Of Columbia District Court
Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00268)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00269)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00270)

FEBRUARY 2013 – 103 NEW CASES

New Jersey District Court
Patrick J. Cerillo – Attorney at Law
Malibu Media LLC v. John Doe (Case No. 2:13-cv-01179)
Malibu Media, LLC v. John Doe subscriber assigned IP address 68.32.191.163 (Case No. 2:13-cv-01176)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.142.2.132 (Case No. 2:13-cv-01178)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01180)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00214)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-01159)
Malibu Media, LLC v. John Doe subscriber assigned IP address 108.35.11.132 (Case No. 2:13-cv-01104)
Malibu Media, LLC v. John Doe subscriber assigned IP address 173.70.130.138 ( 2:13-cv-01106)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01105)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00971)
Malibu Media, LLC v. John Doe subscriber assigned IP address 173.54.255.28 (Case No. 2:13-cv-00972)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00973)

Wisconsin Eastern District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00217)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00213)

California Southern District Court
Leemore L Kushner of Kushner Law Group
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00433)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00434)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00435)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00436)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00437)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00438)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00440)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00442)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00443)

Florida Middle District Court
M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00467)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00468)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00469)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00470)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00471)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00472)

Florida Southern District Court
M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL
Malibu Media, LLC v. John Doe (Case No. 9:13-cv-80178)

Colorado District Court
Jason Aaron Kotzker of Kotzker Law Group
Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)
Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)
Malibu Media, LLC v. John Doe subscriber assigned IP address 63.225.246.31 (Case No. 1:13-cv-00423)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.212.197.251 (Case No. 1:13-cv-00425)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)

Maryland District Court
Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00352)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00353)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00354)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00356)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00357)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00358)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00359)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00363)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00366)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00350)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00351)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00355)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00360)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00361)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00362)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00364)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00365)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00506)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00507)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00508)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00509)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00510)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00511)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00517)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00518)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00512)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00513)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00514)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00515)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00516)

Illinois Central District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01072)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01073)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-02043)

Illinois Northern District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00863)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00878)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00880)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00883)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00884)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00885)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00888)
Malibu Media, LLC v. Dr John Doe (Case No. 1:13-cv-00891)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00913)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00915)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00934)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00935)

Michigan Western District Court
Paul Nicoletti of Nicoletti & Associates PLLC
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00158)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00162)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00163)

Indiana Southern District Court
Paul Nicoletti of Nicoletti & Associates PLLC
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00201)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00203)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00204)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00206)

Indiana Northern District Court
Paul Nicoletti of Nicoletti & Associates PLLC
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00055)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00071)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00072)

Colorado District Court
Jason A. Kotzker of Kotzker Law Group
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.234.104 (Case No. 1:13-cv-00307)
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.250.8 (Case No. 1:13-cv-00308)
Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.161.234 (Case No. 1:13-cv-00309)
Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.34.85 (Case No. 1:13-cv-00310)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00311)
Malibu Media, LLC v. John Doe subscriber assigned IP address 67.176.40.151 (Case No. 1:13-cv-00316)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.71.30.155 (Case No. 1:13-cv-00317)
Malibu Media, LLC v. John Doe subscriber assigned IP address 98.245.154.142(Case No. 1:13-cv-00318)

P.S. – For those of us who follow these cases as enthusiasts, did you notice that there was no mention of Chris Fiore in this long list of cases? Perhaps he still has his hands full with the bellwether case.

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“GOING TO TRIAL: GOOD!”

Malibu Media, LLC has been crashing and burning lately.

“GOING TO TRIAL: GOOD!”

In the Eastern District of Pennsylvania, a judge has forced plaintiff attorney Chris Fiore’s hand by forcing Malibu Media, LLC to move out of the “John Doe” phase and into the trial phase. (Malibu Media, LLC v. John Does 1-14, Case No. 2:12-cv-02084, Judge Baylson)

The funny part about this case is that Fiore appears to NOT want to go to trial. Looking at the docket, it looks as if he was trying to maneuver his way out of trial by not telling the ISPs that the judge has ordered deadlines forcing him to name and serve certain John Doe Defendants. The logic is that if the ISPs did not hand over the subscriber’s contact information, Malibu Media would be UNABLE to name and serve the defendants, and the case would be dismissed [to Malibu's relief].

The judge apparently received word about this and he was not amused, especially because failing to notify the ISPs would be a direct violation of the judge’s 10/3 order forcing Fiore to do so. As a result, yesterday (10/17), Judge Baylson ordered that Malibu Media file a memo and certificate under oath as to whether he informed the ISPs of the court’s intentions to move forward. Should it surface that Malibu Media did not inform the ISPs of the court’s order, or, should Malibu Media fail to name and serve defendants within the judge’s timeline, the plaintiff may face stiff sanctions.

I have a difficult time not being amused by what I am reading in this case. All these months, plaintiff attorneys have screamed, “if you do not settle our claims against you, we will name you as a defendant in a case against you.” Yet here is a judge who is giving Malibu Media the opportunity to move forward against defendants in an expedited fashion, and I cannot help but to think they are squirming.

A “bellwether trial” is a trial which the court employs to determine the merits of the plaintiff’s claim against certain defendants. The logic is that if the plaintiff provides good evidence of copyright infringement, the court will allow that plaintiff the opportunity to sue many other John Doe Defendants in many other cases. However, if the court finds that there is some hidden weakness in Malibu Media’s bittorrent litigation / copyright trolling cases in general (e.g., if there is an insufficient amount of evidence collected when the so-called “infringer” downloaded Malibu Media’s content via bittorrent), then this trial will serve to kill off all of the other Malibu Media, LLC cases in the Eastern District of Pennsylvania.

STATUS UPDATE: Malibu Media, LLC has until OCTOBER 26TH, 2012 to name and serve the defendants. On NOVEMBER 1ST, 2012, 2:30 pm, there will be a recorded telephone conference (the results of which will be made public).

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New Florida Rule: CABLE OPERATORS WHO ARE ALSO ISPs ARE BOUND BY THE CABLE ACT.

Umm… Did Judge Wilson just suggest that ISPs fall under the CABLE ACT??

I was just reading DieTrollDie’s article, and looking at Judge Wilson’s ruling [in the Malibu Media, LLC v. John Does 1-18 (Case No. 8:12-cv-01419) case in the U.S. District Court for the Middle District of Florida], it appears as if he just suggested that ISPs fall under the CABLE ACT (See Order, Doc 14, p. 5 of 7).

“ORDER: …3. Each of the ISPs that qualify as a “cable operator” under 47 U.S.C. 522(5) shall comply with 47 U.S.C. 551(c)(2)(B), which provides that:

A cable operator may disclose [personally identifiable information] if the disclosure is … made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

Now many of you know that I have wrapped my head around the Cable Communications Policy Act of 1984 (a.k.a., “the Cable Act”) so many times, and it surprises me that now TWO judges have suggested that a law written in 1984 applies to the internet (which was not even in existence at the time the Cable Act was written).

As we discussed on Monday in the “Judge Facciola opens up a can of worms with the Cable Act” article, 1) DC Judge Facciola argued whether an ISP would violate the Cable Act by sharing subscriber information. He concluded that assuming arguendo that the Cable Act did apply [noting that DC has not yet ruled on the issue of whether the Cable Act applies to ISPs], that Cablevision would not violate the statute if it complied with the copyright troll’s subpoena. Now, we have 2) Judge Wilson explicitly ordering “each of the ISPs that qualify as a “cable operator” under the Cable Act to comply with the subpoena.

In its essence, the Florida Middle District just ruled that ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT STATUTES.

This is fascinating to me (especially since these judges would be going against significant case law from other districts stating that the Cable Act does NOT apply to ISPs) because it appears as if Judges are trying to corner the ISPs into the confines of the Cable Act (which makes my May 5, 2011 argument of how to sue ISPs for violating the Cable Act possibly viable). I have not even considered the MANY IMPLICATIONS of what happens if — as a rule — ISPs became bound by the Cable Act provisions? What else would change?

Looking at this logically, it makes sense to me that an Internet Service Provider (“ISP”) can be a “cable operator” bound under the Cable Act. Why? Because cable companies (Cablevision, Comcast, Verizon, etc.) *ALL* have taken a HUGE SHARE of the internet subscriber business. Cable companies today offer internet services to their subscribers. Thus, it makes sense that an ISP can be a “cable operator,” and thus they can be bound by the Cable Act.

After all, if hypothetically a huge oil company such as Exxon started selling their Esso Tiger toy dolls (remember these?), wouldn’t they also be obligatged to the laws that govern child safety laws regarding lead paint? How can an ISP say “we’re no longer a cable operator, we’re an ISP” when the same customer who pays for their internet connection pays them for their cable service?

In other words, I am starting to form the opinion that CABLE COMPANIES SOLICITED INTERNET BUSINESS AND BECAME ISPs. THEY ARE STILL CABLE COMPANIES AND THEIR SERVICES SHOULD STILL BE BOUND BY THE CABLE ACT WHICH GOVERNS CABLE COMPANIES.

Wow, this is a can of worms.

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