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 new Malibu Media, LLC 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 these new Malibu Media, LLC cases is that they 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 these new Malibu Media, LLC 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 these new Malibu Media cases has authorized its attorneys to name and serve many more downloaders than their other companies have done thus far. “Naming” defendants until now 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.
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.
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