Malibu Media, LLC – Friend or Foe? Foe.

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.


FOR MORE INFORMATION ABOUT MALIBU MEDIA, LLC:  Click here for more general information about Malibu Media, LLC lawsuits, their tactics, and their strategies.

New Arizona Rule: You are only properly joined with those you upload to or download from.

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.

[scribd id=86003821 key=key-2fdfgumg990ug6reuo9a mode=list]