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 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.
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). …
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.
*** 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 troubleare 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 obviouslyrelatively 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 troublebecause 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.”
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.
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.
Why are the lawyers the same as we have seen with other troll 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)
What to expect based on what these “?attorneys?” have done before.
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.
What else can you tell me about the Malibu Media cases?
[2017 UPDATE] The best way to learn about Malibu Media, LLC is to read what happened to them as it happened. The list of stories below (in the order I listed them) tell the Malibu Media story in a way that you will understand them.
CONTACT FORM: Alternatively, sometimes people just like to contact me using one of these forms. If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
Motions to Quash ISP Subpoena Letters, Malibu Media Lawsuits, Rightscorp DMCA Settlement Notices, and Helping John Does.