Response to the verdict in the Malibu Media Bellwether Trial

malibu-media-case-consolidations

The ‘Bellwether Trial’ is Malibu Media’s FIRST Case to EVER Go To Trial

ID-100157775Image courtesy of @artur84 / FreeDigitalPhotos.net

Much of the bittorrent world is saddened by the leaked news reports of the recent “Bellwether” case in the Eastern District of Pennsylvania (Malibu Media v. John Does, Case No. 5:12-cv-02088) where at least one defendant is reported to be facing close to $112,500 in damages plus attorney fees for the peer-to-peer downloads he is said to have taken part in. The plaintiff attorneys, along with Keith Lipscomb and others who have a vested interest in seeing bittorrent cases against internet users succeed are drinking champagne and celebrating their victory.

 NOTE: BEFORE READING THIS ARTICLE: If you have not already done so, and you are implicated as a John Doe in a Malibu Media, LLC lawsuit, read these first:
1) “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ]
2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements

FOR IMMEDIATE CONTACT AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

My opinions, my convictions…

It is both my professional belief and my personal conviction that copyright trolling lawsuits are wrong, and while there is nothing illegal in suing a defendant for copyright infringement, doing so in my opinion is unlawful and morally corrupt. These lawsuits are nothing more than a STAGE SHOW to permit a behind the scenes SHAKEDOWN of accused internet users, whether or not they actually participated in the accused infringement. For G-d’s sake, the “guilty” so-called “criminal” defendant merely clicked on a link, and downloaded a title that was openly shared with thousands of other downloaders. To hit that defendant with a shock lawsuit where they face $150,000 statutory damages for a video that could have been purchased for a few bucks is a disproportionate punishment for the “crime” of downloading copyrighted films. Rather, instead of suing downloaders and letting the piracy continue, why not just end the piracy problem by issuing a DMCA take down notice to the bittorrent tracker? The alternative of sitting in bittorrent swarms and employing tracking software to track the IP addresses of who is downloading to me just seems like an abusive step to what would otherwise be a simple problem of making the torrent files go away so that unsuspecting downloaders couldn’t click on the links.

It is my conviction that copyright infringement lawsuits are wrong because it is simply immoral to shake down EVERY John Doe Defendant (yes, each one) with the threat of having to defend a lawsuit in federal court unless they cough up tens of thousands of dollars for downloads that the John Doe Defendant often did not even take part in. I have personally seen copyright trolls such as Malibu Media, LLC take large sums of money from defendants who did not do the download, but who were pressured into settling simply to avoid being named in a lawsuit. It is no secret that defending a case is sometimes significantly more expensive than settling a case.

Why the Bellwether Trial will not be binding on other courts.

Yet even with the pending resolution of this lawsuit, accused defendants across the U.S. in their own lawsuits should understand that this ruling will not be binding on other federal courts in other federal districts. Each federal court makes their own rules as to what constitutes copyright infringement, and what evidence is required to prove a defendant guilty when the so-called infringement happens via a bittorrent download. This is our job as attorneys — to know which districts have rules in favor of bittorrent users, and to know which districts have ruled in favor of the copyright holders. No doubt, the Eastern District of Pennsylvania will now become a favored spot to sue internet users across the U.S. for copyright infringement.

Why this so-called “trial” will not affect how we see Malibu Media, LLC cases.

Lastly, on a personal note, this case does not change the way a lawyer handles copyright infringement cases. At least in our Cashman Law Firm, PLLC, there is no silver-bullet approach — some defendants choose to settle, and many do not. Considerations as always involve 1) whether the download actually happened and the circumstances surrounding the accused activities, 2) the accused defendant’s willingness to fight and defend a copyright infringement lawsuit, 3) the accused defendant’s aversion to risk of having their name become public knowledge in a court proceeding, and 4) the accused defendant’s financial ability to take each of the various pathways we suggest.

In summary, determining how to proceed is a question of RISK.

In sum, not all guilty defendants settle, and not all non-guilty defendants fight.  It is simply a calculation and a risk assessment that is based on the client’s desires, the federal district in which the lawsuit is filed (taking into consideration past bittorrent cases filed in that jurisdiction), the judge who assigned to the case (taking into consideration his past rulings), and the plaintiff attorney (or more frequently, the local counsel’s) proclivity towards naming, serving, and taking defendants to trial balanced with their willingness to negotiate an amicable settlement should we decide to go that route.

Bittorrent cases [in their current form] have now been around for three (3) years, and now we have a verdict where a case has been taken to trial — by Malibu Media, LLC surprisingly enough.  When we started, there were no cases taken to trial, and now there is one.  Before the appearance in 2010 of the bittorrent cases, all we had to go on were the old Napster and Grokster cases, combined with the various lawsuits filed by the RIAA / MPAA and miscellaneous copyright infringement files dealing with the internet. Up until now we have been developing case law surrounding peer-to-peer downloads as each case matures. Now we are starting to get some clarity as to the law surrounding bittorrent use.

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.


FOR MORE INFORMATION ABOUT MALIBU MEDIA, LLC:Again, if you have been implicated as a John Doe defendant in a Malibu Media, LLC lawsuit, there are TWO (2) main articles you should read immediately:

1) “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ],” and then
2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements.”

FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info[at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

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.

    Book a Phone Consultation with a Cashman Law Firm Attorney

    “He loves me,” “he loves me not.” It can go either way in the Central District of California consolidations.

    UPDATE (10/10/2012): “He loved her not.” All 33 cases severed and dismissed. Congratulations to all the Cashman Law Firm, PLLC clients who have been dismissed from these lawsuits.

    “He Loves Me, He Loves Me Not.”

    It appears as if us attorneys are playing a “he loves me, he loves me not” game watching Judge Klausner’s orders in the Malibu Media, LLC v. John Does 1-10 (Case No. 2:12-cv-03615) case in the California Central District Court (where copyright troll Leemore Kushner’s bittorrent swarm scam cases are). Quite frankly, it looks to me as if he is doing one of two things, but it is unclear which game he is playing.

    SCENARIO 1: “HE LOVES ME NOT”

    In the first scenario, Judge Klausner is against the John Does, and he is very aware of the case law that has been flourishing around the federal district courts in so many states cutting down the bittorrent lawsuits at the knees of the copyright trolls. The problem is that Judge Klausner hates a copyright infringer.

    So as we discussed in the “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article on 7/12/2012, the judge consolidated all of the Malibu Media, LLC cases under his control, his decision to separate out JURISDICTION and JOINDER issues was deliberate.  In his charade where he ordered Leemore Kushner (the copyright troll) to explain to the court why the cases should not be dismissed for LACK OF PERSONAL JURISDICTION — we know Kushner sues California defendants in the California courts, so jurisdiction is likely proper — the Judge was pretending to cause her grief, but in secret, he was winking at her and telling her he supports her cause.

    This order was EASY to comply with, and in just a few minutes time, Leemore Kushner filed the proper response explaining why jurisdiction was correct.

    UPDATE: *AS OF THIS AFTERNOON,* Judge Klausner graciously accepted her explanation, and in doing so, he established case law indicating that “it is proper to sue a bittorrent defendant where the bittorrent defendant resides.” Now for joinder.

    Now that Judge Klausner enjoyed Kushner’s explanation regarding PERSONAL JURISDICTION, today he asked her to explain to the court the JOINDER issue. Following this line of thought, she’ll provide him the usual “blah blah” swarm nonsense, and he’ll accept her explanation for that too. At that point, he’ll grant her motion for early discovery, and he’ll let the ISPs hand over subscriber information for the many defendants who are implicated in Leemore Kushner’s cases.

    While Kushner would no doubt be thrilled at this victory, Judge Klausner will have also scored a victory in his own “judgy kind of way.” If he accepts her explanation regarding joinder, he will have effectively ruled that“in California, suing defendants together in a bittorrent swarm is PROPER, even when the defendants never knew each other, and none of the defendants uploaded or downloaded to the other (because the dates and times of the alleged infringement would be weeks if not months apart).” In other words, NO MORE SEVERANCE AND DISMISSALS for improper joinder. Now wouldn’t that be a nightmare?!? Watch out for Judge Klausner. EFF, consider an amicus brief here, because HE IS SEPARATING OUT THE ISSUES.

    SCENARIO 2: “HE LOVES ME.” <– the MORE LIKELY SCENARIO.

    As we discussed in our “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article, Judge Klausner made a silly mistake and sent an ORDER TO SHOW CAUSE why the cases should not be dismissed for lack of PERSONAL JURISDICTION. Pretending for a second that he read my article (I highly doubt this is the case) where I chided him for his error in confusing PERSONAL JURISDICTION and JOINDER, he accepted Leemore Kushner’s explanation of why PERSONAL JURISDICTION is proper.

    Now, instead of saying, “okay, proceed with the case,” behind the scenes, Judge Klausner is getting ready to kill each and every one of the cases with one stroke of the pen. So, instead of admitting to his mistake (“who cares anyway,” he might think — “I just cost the evil troll some time and money.”), after being satisfied with Kushner’s explanation, he said, “Oh yeah, and by the way — I’m accepting your personal jurisdiction argument, but I’m not letting you subpoena the ISPs until you explain to me that JOINDER is proper. Why would you sue defendants together in the same lawsuit who were NOT INVOLVED IN THE SAME TRANSACTION OR OCCURRENCE? Silly troll.” In other words, he’s covering his oversight by making Leemore Kushner (the troll) jump through hoops, whereas in the end, he’ll take one look at her boilerplate answer as to why all the defendants belong in the same lawsuit and he’ll LAUGH HER OUT OF COURT. Severance and dismissal of each of the cases. “Go sue them individually and pay the $350 filing fee for each Doe,” he’ll say. In other words, Judge Klausner could be on your side.

    MY OPINION: I wrote this quick article because at this point, it is unclear what will happen, and since many people are calling into my office asking my opinion about this particular case (and the California consolidations in general), I wanted to be explicitly clear that IT CAN GO EITHER WAY. We can only wait and see what he’ll do, and based on that, you, the putative defendant, will learn whether Leemore Kushner or the Lipscomb gang will be calling you to solicit a settlement in the near future. There is really nothing else here. He is either for the trolls, or he is for the downloaders. He can bend the law in whatever direction his judicial activist mind would like to.

    So what’s you’re thought? Is it “he loves me?” or “he loves me not?”

    Skip to content