This is too important of a case not to mention, but I simply have not had the time to write it up (nor do I think that I could have done a better job than what was written up here). Read this article and understand that with a fight, Malibu Media LLC cases can and do crumble.
The most fascinating part about this Colorado federal court ruling is that it came from US Magistrate Judge Michael Hegarty (who has been a thorn in the side of us defense attorneys because his rulings have until now been consistently pro-copyright troll). This is a fascinating revelation which will perhaps smother the Malibu Media, LLC v. Doe cases filed across the U.S.
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.
A few weeks ago, I noticed that there was a shift in the locations where Malibu Media, LLC was filing their cases. Cases began to shift into Ohio (OHND, OHSD), Virginia (VAED), and Pennsylvania (PAED) federal courts (courts which I refer to as “safe haven” courts because of past rulings by judges who allowed Malibu’s cases to proceed unhindered), however I did not understand why.
It was only until a recent conversation with one of Malibu’s local counsel that I understood that they were already aware that this ruling was coming down, and so they shifted their filings into other federal courts in other parts of the country to counterbalance what could be a shift in the law of the New York federal courts. Call this the dirty word “forum selection,” or call it whatever you would like, but there is a pattern which can be graphed like birds flocking across the U.S. based on rulings that happen in the federal courts.
In sum, in my jaded view over the past five years of dealing with nothing but these bittorrent cases, there is no way to shut down the Malibu Media, LLC copyright infringement / “extortion” machine, as this requires participation from every judge in every federal district court. And, it is a difficult task to break the “my court, my world, my rules” mentality that so many appointed federal judges have (where their appointments often have political leanings or where there is a loyalty to a certain belief system or group).
Specifically, even with an appointed federal judge with a political proclivity to a certain viewpoint, it becomes even more difficult to break the lobbyists’ (such as the MPAA / RIAA copyright anti-piracy lobby) grip, which whisper in the judges’ ears (rich with funding and which no doubt influence decisions across the U.S. [and I dare not bring the question of whether the judges are influenced by bias or “gifts” from these lobbyists (legal or otherwise), and I say this because there have been more than a few questionable rulings which suggest to me that at the very least, certain federal judges have a leaning towards one side or the other and where the law is clear, they still differ to allow the copyright holder to prevail]).
In sum, we have a legal system where when a judge upholds the law, he is lauded and congratulated as if he did something wonderful, when upholding the law was the job in which he was appointed to do and which he took an oath to uphold.
There are easy solutions to wipe out Malibu Media, LLC, and every other copyright troll out there who abuses the legal system in order to extort massive settlements from their defendants, however, the country appears not to be ready to address the issue. Senators, congressmen, federal judges, I don’t have anything to say except to do the right thing. And in the merit of judges such as District Judge Hellerstein, Judge Wright, and many other lone wolf judges who do uphold the law, you have my respect and my continued devotion.
Below are the most recent 100 Malibu Media, LLC filings, filed literally only in the past few weeks. You’ll notice, not one of them was filed in the Southern District of New York (or ANY New York federal court. I wonder why.)
OHIO NORTHERN DISTRICT COURT (Yousef M. Faroniya of Law Office of Yousef M. Faroniya) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-01340) Malibu Media, LLC v. John Doe (Case No. 5:15-cv-01341) Malibu Media, LLC v. John Doe (Case No. 5:15-cv-01343) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01342) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-01345) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-01346) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01339) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01344) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01316) Malibu Media, LLC v. John Doe (Case No. 4:15-cv-01312) Malibu Media, LLC v. John Doe (Case No. 5:15-cv-01319) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-01317) Malibu Media, LLC v. John Doe (Case No. 5:15-cv-01315) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01314)
OHIO SOUTHERN DISTRICT COURT (Yousef M. Faroniya of Law Office of Yousef M. Faroniya) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-00235) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02516) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02518) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02515) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02477) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-00236) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02517) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02519) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00435) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02456) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-00230) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00423) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02453) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02454) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00422) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02455) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02457) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-00224) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-00224) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-00228) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-02452) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00420) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00421)
VIRGINIA EASTERN DISTRICT COURT (William E. Tabot of William E. Tabot PC) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00855) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00851) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00859) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00860) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00852) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00862) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00865) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00856) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00853) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00861) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00857) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00863) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00866) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-00850)
PENNSYLVANIA EASTERN DISTRICT COURT (Christopher P. Fiore of Fiore & Barber LLC) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-03598) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-03600) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-03602) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-03604) Malibu Media, LLC v. John Doe (Case No. 5:15-cv-03599) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-03601) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-03603) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-03605)
MARYLAND DISTRICT COURT (Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01851) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01864) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01865) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01855) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01861) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01862) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01869) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01854) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01866) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01868) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01859) Malibu Media, LLC v. John Doe (Case No. 8:15-cv-01858) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01871) Malibu Media, LLC v. John Doe (Case No. 8:15-cv-01863) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01853) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01867) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01870) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-01857) Malibu Media, LLC v. John Doe (Case No. 8:15-cv-01856)
NEW JERSEY DISTRICT COURT (Patrick J. Cerillo – Attorney at Law) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04307) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04309) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04276) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04305) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-04287) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-04288) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04308) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04304) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04275) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04278) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04310) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04272) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04273) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-04269) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04230) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-04232) Malibu Media, LLC v. John Doe (Case No. 3:15-cv-04243)
MICHIGAN EASTERN DISTRICT COURT (Paul J. Nicoletti of Nicoletti Law PLC) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-12293) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-12294) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-12274) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-12283) Malibu Media, LLC v. John Doe (Case No. 2:15-cv-12290)
— CONTACT FORM: 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.
Judge Alvin Hellerstein of the Southern District of New York just did the right thing in denying “expedited discovery” which would allow Malibu Media, LLC to send a subpoena to the Time Warner Cable ISP, thus preventing Malibu Media from learning the identity of the John Doe Defendant.
The copyright troll blogosphere is no doubt about to erupt with this story — in fact, the Twitter feed is already bustling with comments from Sophisticated Jane Doe (@FightCopytrolls), Raul (@Raul15340965), and other bloggers. Bottom line, a United States District Court Judge just said “no” to allowing Malibu Media’s extortion scheme to proceed.*
Judges are the gatekeepers of the law, and the reason these cases have been allowed to fester and infest our legal system is because judges [until now] have been asleep. They have blindly allowed the plaintiff copyright trolls the ability to wreak havoc on the accused downloaders by allowing the copyright trolls access to them so that they can intimidate, harass, embarrass, and threaten to deplete all of the funds of the accused defendant’s [sometimes life] savings in order to avoid the costly alternative of litigating a copyright infringement lawsuit.
For the purposes of this article, I am focusing on two points which I found to be interesting in today’s Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04369; NYSD) ruling (see Judge’s order here).
RULING 1: OBSCENE PORNOGRAPHY MIGHT NOT BE ELIGIBLE FOR COPYRIGHT PROTECTION.
This ruling (based on Judge Marrero’s Next Phase Distribution, Inc. v. John Does 1-27 (Case No. 284 F.R.D. 165, 171 (S.D.N.Y. 2012)) case is the “third rail” issue in copyright troll litigation. Do copyright rights extend to pornographic materials? What if they are considered “scenes a fair,” or scenes which contain the same “roles” and “characters” as in other films — are these considered copyrightable (keep the same story, scene, genre, and roles, but switch the actors)? Are these works considered art? And, what happens if the copyrighted film violates one or more obscenity laws — does that film still have copyright protection?
These are just questions, and to date, they are unresolved. However, the fact that Judge Hellerstein brought it up means that he is seriously considering whether this should be a basis to deny copyright infringement claims against John Doe Defendants.
RULING 2: MALIBU MEDIA ACCUSES A JOHN DOE DEFENDANT, BUT PROVIDES **NO EVIDENCE** THAT THE “JOHN DOE” DOWNLOADER IS THE ACCOUNT HOLDER. THUS, THERE IS **NO BASIS** FOR SUING THE ACCOUNT HOLDER OR IMPLICATING THE ACCOUNT HOLDER AS BEING THE “JOHN DOE” DOWNLOADER DEFENDANT IN THE LAWSUIT.
This has always been a blatantly simple, and yet tough argument to describe. But when you think of it, the simplicity — once it jumps out at you with the “aha!” moment — is charming and unforgettable.
In short, Malibu Media can prove that SOMEONE downloaded one or more of their titles. However, they do no prove (or even assert any evidence) to indicate that it was the account holder who downloaded the copyrighted film… so what legal basis does Malibu Media have to sue the account holder?? Judge’s answer: None. In order to make a “prima facie” case that would convince a judge to rubber-stamp a subpoena permitting the copyright holders to force an ISP to turn over the identity of the account holder (whether or not he is the actual downloader), the copyright holder needs to provide some “link” identifying the actual downloader as being the account holder. No link is ever provided in Malibu Media’s pleadings, and thus in legal terms, the pleading “fails” and the copyright holder’s request for expedited discovery should be denied.
That’s it. My two cents, for what it is worth.
Congratulations to District Judge Hellerstein for a brave and correct ruling on the law. Now if all of the other judges in the Eastern District of New York would fall in line with this ruling and abandon the “my court, my world, my rules” mentality, we can put an end to these cases once and for all.
*UPDATE (7/7, 6:30am): I am surprised that there are not more articles on this topic. This should be all over the news for other NY judges (and judges in other federal district courts) to see. Unfortunately, if other judges do not see [and act on] this ruling, then it gathers dust and it has little-to-no effect on future Malibu Media, LLC lawsuits. …and the scheme continues unhindered.
— CONTACT FORM: 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.
OTHER RECENT MALIBU MEDIA (NYSD) CASES: Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04713) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04717) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04720) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04725) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04728) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04729) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04730) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04731) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04735) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04736) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04738) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04732) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04733) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04734) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04741) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04742) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04743) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04739) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04740) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04744) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04745) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04367) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04374) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04370) Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04377) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04368) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04369) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04371) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04373) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04378) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04380) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04381) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04382) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03130) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03135) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03137) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03138) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03143) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03144) Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03134)
