Thinking about Malibu Media’s single “Doe” lawsuits.

With all the drama going on in the Prenda Law Inc. defamation cases (most recently, they have sent a subpoena to WordPress asking for every IP address who visited SJD or DTD’s website since 2011), I wanted to make sure the other lawsuits didn’t take advantage of this diversion.

Thinking about the Malibu Media, LLC single “John Doe” lawsuits article I wrote about last night, I wondered what would happen if the defendants were actually “named” and served (their attorneys historically have named and served defendants, so it is a possible outcome with these lawsuits as well).  

I remembered earlier in the day, I was discussing issues affecting the “other” copyright trolls (the stock photo and Linda Ellis copyright troll letters) with an individual fighting that side of the copyright infringement “IP monetization / enforcement” issue (as you know, there is a whole other side to the copyright infringement “extortion letter” issue that we do not even discuss on our blogs).

Someone mentioned to me the “double-tap” joinder strategy (phrase coined by DieTrollDie) relating to an article I wrote about last year.  I was wondering how interesting it would be to force Malibu to disclose all of the other bittorrent swarm participants and join them in under the federal joinder rules as co-defendants if they ever did go so far as to name one of my clients as a “named” defendant.

Obviously nobody wants to drag anyone into any lawsuit, but as a strategy — even months later — I still think the “double tap” is still a very good strategy, and at the very least, it is certainly fun to think about.

So revisiting the strategy, I visited my own blog and re-read the article from back in October. While reading, I noticed the “Like” button and instinctively clicked it (social engineering). Moments later, I received the following e-mail from WordPress.

double-tap joinder strategy for named defendants
double-tap joinder strategy for named defendants

LOL.  Sorry if you thought I was going somewhere with this post. 😉

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.

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    12 thoughts on “Thinking about Malibu Media’s single “Doe” lawsuits.”

      • Since you asked, just because I am a reader of those blogs (an avid reader, by the way) does not mean that I’ll be implicated in the lawsuits. Of course, I have written hundreds of articles on Steele and I post regularly on their sites, but nothing I post could be considered defamatory. I’m not anonymous so even when I post articles on this site or comments on any other site, I am *always* considering whether I could be sued for something I post. Otherwise, I might be more vocal like the other bloggers and commenters.

    1. As an anti-copyright troll community, each of us may decide to contact and ask them not to comply with the subpoena, but in my opinion, WordPress has their own lawyers and staff who are expert in figuring out whether a subpoena is overreaching or not.

      On an unrelated note, I never heard of Steele clicking the “This content is abusive” button reporting DTD or SJD’s site to WordPress, but if anything defamatory is written, this is an easy way to stop the problem from escalating into a lawsuit. Twitter has a similar “Flag media” option for any Tweet he found to be offensive or defamatory. Him failing to mitigate damages and then suing everyone in my mind wreaks of the same issue with copyright infringement / bittorrent lawsuits (failing to issue DMCA takedown notices to offending bittorrent files) — in both cases, there is an easy way to resolve the problem without running to a judge.

    2. Mr. Cashman,

      Please correct me if I’m wrong.

      It’s your opinion that we shouldn’t contact wordpress? So you believe they may decide to fight it on their own?

      I’m not asking for a definitive statement or anything, I’m just curious how you’re reading the situation at the moment.

      I certainly don’t want to have a “call to arms” type thing and have thousands of e-mails annoying wordpress about the issue if they decide to fight it.

      Personally, I can’t believe the courts allow such a subpoena. It seems insane that they can file suit specifically against Cooper, Godfread and 10 does that they selected statements from, and then go ahead and get a subpoena for PII for everyone that ever visited.

      • My take on the subpoena issue is that WordPress owes you no duty, meaning that they can do what they want with your IP address data. It is simply a judgement call whether everybody should contact them or not – there is no telling whether that will have a good effect or a bad effect (I would lean towards “good effect” as long as the e-mails are educating WordPress as to the background behind the copyright trolling lawsuits rather than a mere request for them not to comply with the request).

        At first glance, WordPress does not appear to be under a duty to produce the information (hence the “emergency” request stressing the urgency of obtaining the information), but historically I understand that WordPress would readily hand IP information out to whoever asks. Then again, this is not a criminal case, the individual requesting the information is John Steele / Paul Duffy rather than a government prosecutor, and this is a defamation (civil) case, not a kiddy porn, stalking, missing persons or murder case. Thus, I’m not sure how they’ll handle it. For this reason, I don’t see any harm in everyone sending in e-mails.

    3. Would it be more or less difficult if the plaintiff never tried to file the suit against multiple John Does. Would it be more difficult to argue in favor of joinder if plaintiff had never tried to join defendants?

      • Joining defendants can be part of any defense whether or not they were initially involved in some other lawsuit. The bittorrent “swarm” information can be easily obtained in discovery once the client is named. If the other swarm members were “John Does” in other lawsuits in which the named defendant was originally implicated in, the argument is simply that much stronger.

    4. DTD and others are reporting that WordPress is not willing to answer until the issues with the document are sorted out.

    5. WordPress’ general counsel commented on DieTrollDie stating they will not produce any information as the subpoena will be challenged.

      I doubt anyone finds it surprising or objectionable that a company would respond to subpoenas from law enforcement. Yes, the government can overreach and is not always trustworthy but they do have to meet certain standards and there is oversight.

      However, if it was normal for companies to hand out anything asked for in a civil lawsuit, well, there would be a cottage industry of frivolous litigation dedicated to trolling for trade secrets. For a company like WordPress, the data they are asking for arguably has trade secret status, and is at least critical to their business model as online privacy is such a huge issue, to say nothing of freedom of speech, that protecting that information is vital to maintaining users’ confidence in their service. If it were really so easy you can imagine all kinds of frivolous litigation services offering, for example, to come up with a scheme to get Coke’s secret recipe, a competitor’s account list, schematics for the iPad, etc., etc., etc.

      Take a look at the recent joint motion to continue trial in the bellweather trail and note that Malibu attempted to subpoena a bunch of search engines for the John Does’ search histories. Needless to say all objected and the way Malibu describes their predicament it sounds as if they truly don’t know what they are asking for and up against.

      They note that “a motion to compel may be necessary” versus Google. LOL.

    6. Hey Rob another interesting note. The subpoena to WordPress was sent out in the Prenda v. Internets case asking for data back to January 2011, but Prenda was incorporated in November of 2011.

      This was *not* the Steele or Duffy case, so presumably it was impossible to defame Prenda Law, Inc. as an entity until after it existed and anything prior to that is outside the scope of any defamation lawsuit Prenda could bring.

      Looks like they haven’t lost their attention to detail even with stress building up to Monday’s hearing…

    7. just a thought after re-reading Declaration of Colette Pelissier Field, dated 12-5-2012, specifically line items #18-29…

      Since Brigham and Colette Leah Pelissier-Field/X-Art/Malibu Media LLC(/Keith Lipscomb/Mary Katherine Schulz), in our opinion, do not seem to be exercising any REAL LIFE concern, personal responsibility and/or personal accountability that their own website keeps getting allegedly “hacked” and their own copyrighted pornography supposedly keeps getting “stolen” by an unknown user(s) and subsequently supposedly keeps getting uploaded by said unknown user(s), can an Internet community, of 200k+ and growing Doe’s most of whom are innocent and have been personally effected and affected by the pornography copyright trolls, create a “petition” to the BitTorrent sites that are indexing Brigham and Colette Field/X-Art/Malibu Media LLC(/Keith Lipscomb/Mary Katherine Schulz) allegedly “stolen” and uploaded pornographic material asking the BitTorrent sites that in the best interest of the American public, and in an effort to protect their users to take Brigham and Colette Field/X-Art/Malibu Media LLC(/Keith Lipscomb/Mary Katherine Schulz) pornographic material indexes off their sites themselves?

      *(we are fairly confident, noting that as a website that handles personal information and payment information that they DO INDEED BEAR THE RESPONSIBLITY TO SECURE THEIR OWN WEBSITE and the PERSONAL DATA THAT THEIR SERVERS ARE STORING)*


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