malibu-media-anonymous-settlement

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.

42 thoughts on “Malibu Media, LLC – Friend or Foe? Foe.”

  1. I interpret this as a sign of desperation on the Trolls’ part. If settlement rates were good for existing suits there would be no reason to do this. It seems insane to ask for more, if people were balking at ~$3,000, $7,500+ is even less likely to work.

    A couple of possibilities:

    1) They have discovered there is a small pool of Does that has money and is going to settle because they are afraid of embarrassment or very guilty, older men with respectable jobs and family lives, people who just have plenty of money, whatever, so they figure taking those Does for all they can get will net the scam more money. Basically, focus on the “elite” Does and take them for more to make up for overall low settlement rates.

    2) This is for additional fear-factor, as that is almost all the Trolls have, and they hope that by starting with a scarier number they will be more likely to get Does to call and plead poverty and negotiate a smaller settlement. If the Doe still balks they name him and demonstrate they are willing to pretend to be serious, and again settle for much less.

    3) They have actually buffed up their “investigative” methods and are more confident with these Does. Have better data that will help resolve past joinder problems. Have tracked people over time and captured data streams and have some actual evidence that a file transfer even took place.

    Beyond that, this does not seem like it will be productive. Doing some quick Googling I come up with statistics stating the average American has $3,800 in the bank and 25% of households have no savings, so trying this on unknowns is not going to be a profitable enterprise, as the average Doe will literally be unable to afford a settlement or a defense. Of course that leaves the plaintiffs with opportunities for default judgements but those will be Pyrrhic victories if the Doe simply can’t pay, and if the Doe can’t pay it doesn’t help sustain the scam.

    I am given to assume that part of the Trolls’ reluctance to name defendants and follow through is that they know their evidence and methods are weak and that they are likely to expose themselves to tons of negative publicity and regulatory attention when they get caught suing the wrong little old lady. There has been a fair amount of negative press regarding Copyright Trolls already and that is with a minimal amount of follow-through on the Trolls’ part. There also seems to have been some cherry-picking in named suits so far (i.e. people who contact the Trolls and admit guilt, or get ratted out by a housemate), but we have already seen things backfire for Prenda when they chose some random Does to name in California (the filings in the Wong and Abrahams suit suggest they were not guilty and did not incriminate themselves).

    Keep in mind that simply accusing someone of downloading a siterip does not mean they are more likely to be the right person. A single .torrent is a single .torrent whether it actually contains one file or one thousand, so unless something significant has changed with their “forensic” methods there is no reason for these cases to have a better false-positive rate than their predecessors, and if it is a false-positive then it doesn’t matter what the Doe is accused of downloading. If they were claiming multiple downloads of multiple torrents with the same IP, that resolved back to the same subscriber, that would be a bit more compelling as it would at least establish a pattern from multiple samples.

    Something else to toss out: We have seen, especially with Prenda’s cases, how lax these guys are about obtaining copyright registrations. If these cases are trying to extract larger settlements by alleging infringement of a multitude of works, what are the chances that the Plaintiffs have actually done the paperwork and registered every work in the siterip? Considering the trouble Trolls have had keeping registrations in order for single-work suits, that is something to keep a close eye on in these cases. The scope of Prenda & Hard Drive Productions fraudulent requests for statutory damages is breathtaking; fraudulently requesting statutory damages for dozens or hundreds of unregistered works at a time is going to make things that much uglier for the Trolls when their time comes.

    Full stop, if I felt like I was put in a situation where I *had* to spend $10,000+ one way or the other, you bet your ass I would spend it on a lawyer and fight. $3,000 is already pushing the limits for enough people that we are now seeing a lot of represented Does particularly in FL and a couple of suits against the Trolls. This is a definite gamble as actually taking one of these to trail will result in exposure of their “investigative” methods, open the Trolls up to discovery, etc., and there is nothing that can make me believe they want that.

  2. Interesting. As the demand amount goes up, the odds of a defendant settling goes down. For that amount of money it actually makes more sense to pay for the cost of an IP lawyer than to just settle.

  3. Malibu Media, LLC aka ‘Brigham Field’ of ‘X-Art’…..I guess he did not want his name being dragged through the mud on this.

    Brigham Field may make enough people stand up to him that the entire troll industry falls down. I guess he does not know the process.

    1. Thanks for putting up what Malibu Media’s talking about. All my searches for Malibu Media led me to dietrolldie, here, and a few legit, unrelated sites using that name. I used your post (and houstonlawy3r’s list of copyrighted movies below) to look for whatever I’m alleged to have downloaded. Surprise: nothing. This is a most suspicious state of affairs, where IP addresses can be collected and suits brought with the only evidence being a series of numbers. I wonder if we’ll ever see a situation where the plaintiffs are sued for fraud in their turn.

  4. Are all of these cases for Does in the filing state, or is he attempting joinder across multiple states in each case?

    On a separate note, it looks like the Massachusetts cases filed today are all within the state ( at least the few that I looked at ). IPs from back in Dec/Jan, too. Maybe refiling from an earlier case? AND, the filing attorney is a former torrent subpoena defender ( per comment on SJD blog ). More reason to stick to the attorneys that have proven themselves to be genuine ( ex. Mr. Cashman ).

  5. Just an FYI. Today’s Malibu Media 1-20 in FLA is more of the same…. another siterip. Says they have copyrighted 17 of the 100+ “movies” in the bundle. All Does are in FLA. Dates: Dec thru 2/27.

      1. They can “go after” you for as many movies as they want — copyrighted or not. What I understand you are asking me is, whether they can sue you and get statutory damages ($150K if willful, $30K if not willful) for only the 17 copyrighted movies you reference in your comment (there are actually significantly more [see copyright.gov records]), and the answer is that they can only get statutory damages for films that were PROPERLY AND TIMELY REGISTERED with the U.S. Copyright Office. Obviously your attorney can do the legwork for you on this, because there are other considerations of whether statutory damages can apply (e.g., 3 month window, etc.). FOR EVERYTHING ELSE NOT PROPERLY REGISTERED, the best they could probably do in court is ACTUAL DAMAGES (e.g., the cost of the DVD or the download).

  6. On the subject of Malibu Media: In EDVA the judge has stated it’s his opinion Does 2-XX should be severed and has recommended as such.

  7. That Kotzker gent, the one involved in the New York State suits, apparently has an office in Highlands Ranch, Colorado, too. Busy little bee, isn’t he? He’s filed a suit in Colorado now (and thinks my IP is involved…go figure.) The case number as filed in US District Court in Colorado is Civil Action No. 1:12-cv-00397-WJM-MEH, for any who might like to use it as reference.

    1. “MEH” is a good initials for a judge who does not give a fk about defendants.

      We all hope that a judge with initials WTF comes to Earth soon and makes his final judgement liberating the US population from the tyranny of trolls!

  8. So, hoping someone can enlighten me on why Motions to Quash or Motions to Sever are a bad idea. I know that a judge may deny it but are there other reasons? I see mentions that several posts on this blog tell me its not recommended but I couldn’t seem to find a clear answer and if anything the dietrolldie website author seems to suggest they these cases are a good candidate — what are the pros/cons exactly?

    Also, I’ve been using RFCExpress.com to look at the cases in CO and others — some new ones are out there as of this week too now and it appears there is even a few named individuals as well. In some of the cases from the filings in February it appears that Motions have been submitted, Also, already some Does being dismissed with prejudice and some without…can we read into this activity?

    Lastly, for a Motion to Sever the Does completely…can this be done as a motion for the case in general instead of from a specific Doe?

    1. Pardon the analogy here, as there are very specific reason why it is my opinion (not to be taken as legal advice since I am not your lawyer and your situation may be different) that filing a motion to quash is a bad idea.

      In short, there are TWO characters in the motion to quash you need to avoid.

      1) THE SACRIFICIAL LAMB who files the motion to quash — he files the motion to quash [wrong jurisdiction, improper joinder, etc.] AND LET US PRETEND HE SUCCEEDS AND HIS CASE IS SEVERED AND DISMISSED. Ask yourself — this guy just caused tens of thousands of dollars of loss to the plaintiffs by killing their cash cow. WHO do you think they will go after when they decide to re-litigate the issue? Yes, HIM AND HIS IP ADDRESS (which they have).

      2) THE LAWYER who charges thousands as retainer fee and hundreds by the hour to draft and file the motion to quash. When the motion fails, he tells the Doe Defendant, “I’m sorry, YOUR motion to quash lost.” When the motion succeeds, he not only tells his client, “WE won!” but he has also gained himself a FUTURE client WHEN THAT CLIENT IS LATER NAMED AS A DEFENDANT.

      1. Thanks for the insight — education is key and even approaching a defense lawyer requires a certain knowledge of the process. In your eyes do you see these new Colorado cases being reviewed by the judges here with the same scrutiny as in Virginia? Any idea of prior Colorado cases that might give us an idea of how the judges here view defendents in these cases?

      2. Sadly, so far Coloarado has been giving Jason Kotzker full permission to move forward. I don’t see them stopping him any time soon which is why he has been doubling-down on his suits and adding more defendants. This could always change, but so far the trend in Colorado is in the PLAINTIFF’s favor (one more reason not to file a MtQ).

  9. So, the phone calls have started going out it seems for the February filed cases (maybe from this guy: http://800notes.com/Phone.aspx/1-818-748-6023). Well said about the sacrificial lamb, and the perverse incentives for defense lawyers. What do you think about the Colorado cases being re-assigned to a single judge (Michael e. Hegarty)? I was thinking positive, if only to bring the magnitude of what’s happening under the perspective of a single judge. But I’ve read mixed opinions about judge Hegarty too.

  10. Is it possible to file a MTQ completely anonymously?? either signing as John Doe (no #, no IP) or signing as all, John Does 1-xx ??

  11. I just received a notice from Comcast in Massachusetts regarding the Nu Image “The Mechanic” suit filed in Maryland. I’m a bit clueless regarding the correct course of action. Should I simply ignore, or take some preventative course of action? Based on your advice above, it seems that filing a motion to quash or vacate is a bad idea. If Comcast is going to release my personal information in a month, won’t that open me up to more aggressive action by the troll?

  12. I guess after reading this I will not file a MTQ although it seems like someone should because we all know kotzker is just trying to get info to pass onto creditors. I am wondering about the part in the order that says “the court cautions the plaintiff that improper use of this information may result in sanctions”, is that basically saying that if he gives or info to creditors and we get a threatening call asking for money he is going to have sanctions imposed on him?

    1. That is a good question. If it’s proven that the plaintiff’s agents can get hold of you at home and that you’ve spoken to them, I (in my layman’s knowledge) would think that calling employers, family, or anyone else unrelated to the case would qualify as harassment. Document everything you can with affidavits, phone records, or whatever in any case. As Mr. Cashman points out below, the judge might need to know this is going on, either for imposition of sanctions against the plaintiff or, better yet, exposing the trolls to the daylight.

  13. Just food for thought…

    “All you have to do is say something nobody understands and they’ll do practically anything you want them to.”

    -Holden Caulfield

    Remember, for every action, there is an equal and opposite reaction…it may take time (and money) but this house of cards will fall.

  14. Their caller ‘Lee’ has called people completely unrelated to this (neighbors) chasing me, and during the call has identified the plaintiff and that it is a federal legal matter he is calling about. Is that an abuse of (FRCP) Rule26(c) ?

    http://lexnet.bravepages.com/Rule26.htm

    Only limited discovery has been approved and the contact details were recieved by the plaintiff one week ago. No written contact has been recieved yet. So far I have elected not to return his calls. And it’s ok to be calling neighbors already?

    1. Probably not. While this is obviously not legal advice and I am not your attorney, if I were in your shoes I would consider sending a private letter to the judge’s chambers to let them know this sort of abusive activity is taking place.

  15. Dumber question…what if you were actually a paying member of x-art and downloaded it from a torrent site by mistake?

    1. Look at the X-art Legal page, you are granted a legal license to copy the “Content”, which is explained to be everything on the site. They never specify that it HAS to be from the site directly. If you are a paying member and are caught up in their lawsuit, you could possibly fight it with that argument. However, never admit to torrenting anything ever. Only prove to be a paying member and point out the legal license they granted you. This isn’t legal advice, but I did ask my attorney this question on behalf of anyone who could be a paying member of their site, when I looked into this initially. He didn’t go into a lot of detail, since it would not apply to me, so I can’t really say much on the matter. Either way you look at it though, paying members are granted a legal license to copy the “Content” and it is all there on their Legal page of X-art.

  16. Now this is entertaining. I just got a call from Lauren Michaels (no law firm name, though) at an 818 number, which comes up as registered in California’s sunny Agoura Hills, and all the reverse phone number lookups I come up with show it to be a cell phone. Evidently they can only afford prepaid cell phones and they need to extort money from the Does to pay for an office.

    Eh. No worries. I’m just looking forward to the time they look at my computer and find out there’s nothing concerning their pornography on it. Mwahahahaaaaa! Innocence can be expensive, as I’ll find out here, but oh, the rewards… Good luck, one and all.

    1. I do urge that you do not hand it over to them if you are to have forensics look at your computer. I have heard of people doing so and mysteriously winding up with the files on their computer, when they initially handed it over free of them. Even my attorney explicitly told me to never hand it over to them. If my computer was to be checked, it would be checked by someone we hired, not them.

      1. No kidding. I wouldn’t know what to do if a court ordered me to hand it over, although I’d try to contest it based on privacy concerns because of all the other stuff they’d get, like passwords and whatnot, but as soon as I heard they’d try to “inspect” my computer, I was reminded of a line from “Gulag Archipelago” concerning Soviet security searching peoples’ houses and effects: “They’re looking for something they haven’t planted there yet.”

        Not to worry. I’m not quite as dumb as I look.

        I don’t know that that’s possible…

  17. @thatbalddue – She called me as well recently, gave me the same run down, etc… i am in the process now of hiring an attorney to handle this…
    Good luck to all that are having to deal with this

  18. I am actually new of this thing and I received a letter about this. May I explicit know what exactly it’s going on? I don’t understand what this is and what exactly I am supposed to do…If I have to do anything or not. Can someone be gentle and please explain it to me?…besides I do watch a couple of porn here and there on line but I never download them. I will deeply appreciate it
    Thank you

  19. Just a quick question, but when looking in to cases, it appears majority of the Malibu Media cases are filed under “17:101 Copyright Infringement” but one of them is filed under “11:0101 Bankruptcy” What does this mean?

    1. These cases are all CIVIL (not criminal), and so there is no criminal record associated with a verdict of guilt or innocence in these cases. All the moreso, settling is a confidential matter which stays between yourself, your attorney, and your plaintiff.

  20. Venerable milkshake includes two required components – draw off and ice cream. Cocktail whipped in a blender or with a mixer at high precipitateness until a deep foam.

  21. I am an old woman who was getting phone calls from Malibu Media. I finally called them up and told them to quit harassing me as I hadn’t done anything wrong and she told me I still should get a lawyer. I told her I found out that the firewall was gone from my computer. I did have one, but my stepkids would spend a weekend about once a month and she played games on facebook. I don’t know if she did anything to the computer, I think not, as she was used to using the library’s computer.
    Anyway, I got a letter last week from Schultz Law, P.C., 1144East State St, Geneva, IL 60134, saying they were reviewing me for purposes of determining whether to pursue her clients claim of copyright infringement, by filling out a form. I am the only one whose name is on my computer, although occasionally, other people will use it, but rarely, maybe 3 or 4 times a year. It says for me to convey any evidence which allows me to convey to them any evidence which I believe will make it less likely that I am the infringer. It asks how far the nearest neighbor is to me.
    What should I do, it also has a place to put an attorney’s name on it. I will fill it out, but I live across from a campground that has hundreds of campers there, where any of them could have gotten into my computer via my router.
    Please help or advise about getting an attorney. I am married, but my husband is illiterate and cannot use the computer, plus he works 10-12 hours a day.

  22. I just received a call from Malibu media after leaving my phone # at the lawyer’s office which I researched that is located here in IL.She told me again to get in touch with a lawyer. How would these people even know I went to the media? Would I tell them I was contacting them? Everyone who knows me would know it was hogwash! I can’t even stand dirty words! But, I would hate to have people talking about me that don’t know me. I am a Christian, was the wife of a preacher for 31 yrs, a sunday school teacher, singer, etc; What if I sent them a letter telling them that? Just wondering!

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