Malibu Media (X-art.com site) lawsuits

NY Judge asks Malibu the ‘is porn copyrightable’ question.

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malibu-media-case-consolidations

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.

Reference: See my 8/14/2012 article entitled, “How to make bittorrent cases go away once and for all…” (Reason 3)

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.

Additional Reference:
Fight Copyright Trolls (SJD): Citing previous Malibu Media’s sheer abuse of court process, New York judge denies early discovery

*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.

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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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    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)

    New Florida Rule: CABLE OPERATORS WHO ARE ALSO ISPs ARE BOUND BY THE CABLE ACT.

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    Umm… Did Judge Wilson just suggest that ISPs fall under the CABLE ACT??

    I was just reading DieTrollDie’s article, and looking at Judge Wilson’s ruling [in the Malibu Media, LLC v. John Does 1-18 (Case No. 8:12-cv-01419) case in the U.S. District Court for the Middle District of Florida], it appears as if he just suggested that ISPs fall under the CABLE ACT (See Order, Doc 14, p. 5 of 7).

    “ORDER: …3. Each of the ISPs that qualify as a “cable operator” under 47 U.S.C. 522(5) shall comply with 47 U.S.C. 551(c)(2)(B), which provides that:

    A cable operator may disclose [personally identifiable information] if the disclosure is … made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

    Now many of you know that I have wrapped my head around the Cable Communications Policy Act of 1984 (a.k.a., “the Cable Act”) so many times, and it surprises me that now TWO judges have suggested that a law written in 1984 applies to the internet (which was not even in existence at the time the Cable Act was written).

    As we discussed on Monday in the “Judge Facciola opens up a can of worms with the Cable Act” article, 1) DC Judge Facciola argued whether an ISP would violate the Cable Act by sharing subscriber information. He concluded that assuming arguendo that the Cable Act did apply [noting that DC has not yet ruled on the issue of whether the Cable Act applies to ISPs], that Cablevision would not violate the statute if it complied with the copyright troll’s subpoena. Now, we have 2) Judge Wilson explicitly ordering “each of the ISPs that qualify as a “cable operator” under the Cable Act to comply with the subpoena.

    In its essence, the Florida Middle District just ruled that ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT STATUTES.

    This is fascinating to me (especially since these judges would be going against significant case law from other districts stating that the Cable Act does NOT apply to ISPs) because it appears as if Judges are trying to corner the ISPs into the confines of the Cable Act (which makes my May 5, 2011 argument of how to sue ISPs for violating the Cable Act possibly viable). I have not even considered the MANY IMPLICATIONS of what happens if — as a rule — ISPs became bound by the Cable Act provisions? What else would change?

    Looking at this logically, it makes sense to me that an Internet Service Provider (“ISP”) can be a “cable operator” bound under the Cable Act. Why? Because cable companies (Cablevision, Comcast, Verizon, etc.) *ALL* have taken a HUGE SHARE of the internet subscriber business. Cable companies today offer internet services to their subscribers. Thus, it makes sense that an ISP can be a “cable operator,” and thus they can be bound by the Cable Act.

    After all, if hypothetically a huge oil company such as Exxon started selling their Esso Tiger toy dolls (remember these?), wouldn’t they also be obligated to the laws that govern child safety laws regarding lead paint? How can an ISP say “we’re no longer a cable operator, we’re an ISP” when the same customer who pays for their internet connection pays them for their cable service?

    In other words, I am starting to form the opinion that CABLE COMPANIES SOLICITED INTERNET BUSINESS AND BECAME ISPs. THEY ARE STILL CABLE COMPANIES AND THEIR SERVICES SHOULD STILL BE BOUND BY THE CABLE ACT WHICH GOVERNS CABLE COMPANIES.

    Wow, this is a can of worms.

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    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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      Why California Malibu Media Case Consolidations are Bad.

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      malibu-media-case-consolidations

      UPDATED 2020 SUMMARY: Case consolidations (until this post) happened when a federal judge lumped together different cases which all suffered from the same flaws, e.g., improper jurisdiction, improper joinder, etc. and they dismissed them all in one order. This was a good thing! However, when a troll-friendly judge consolidated a plaintiff attorneys case to keep the cases alive — to manage the dockets in order to avoid inconsistent rulings — while these types of case consolidations were good for the court (and for justice), it was a bad thing for the defendants accused in those copyright infringement cases.

      case-consolidations-malibu-media
      Gamopy / Pixabay

      This post is not going to be one of your favorites, because not all my posts are going to similar to my “Malibu Media Goes Down in Flames” article (or the many other positive ones I have written to date).

      In short, when a judge consolidates a copyright troll’s cases, those case consolidations are usually a good thing. In the “olden days” (meaning, two years ago), lawsuits used to have literally THOUSANDS of John Doe Defendants in each case. The problem was that when those monster cases would fall, they would make a huge thump sound and thousands of defendants would go free with one judge’s order.

      As we predicted many months ago, the newer lawsuits would be smaller with fewer John Doe Defendants in each case. That way, if a “Malibu Media, LLC v. Does 1-10” case went bust, there would be twenty other cases still standing. Plaintiff attorneys quickly figured this out and started to sue just a few defendants in each lawsuit.

      Personal Jurisdiction (“Improper Location of Lawsuit”)

      Similarly, in the older cases, plaintiffs would clump together defendants from all over the country and they would sue them in the WRONG STATE.

      Obviously the rule the copyright trolls overlooked at the time is that “in order to sue a defendant, you need to sue a defendant where the DEFENDANT resides,” not in the court which is closest to the plaintiff attorney’s Chicago office. This was the issue of PERSONAL JURISDICTION (or more accurately, “improper jurisdiction”), where the plaintiffs would sue defendants in the wrong courts.

      However, the end result of suing people from across the US in one federal court is usually are case consolidations by the judges (resulting in a follow-up order dismissing the cases).

      However, more and more, we see with the Malibu Media, LLC bittorrent cases and the copyright infringement cases from other plaintiff attorneys (e.g., Jason Kotzker, Mike Meier, etc.), they are purposefully suing defendants in the CORRECT STATES so jurisdiction in most cases IS proper.

      Thus, by suing defendants where they live, Malibu Media has successfully avoided case consolidations for improper jurisdiction.

      Joinder (“Suing the Wrong Defendants Together”)

      In mostly every bittorrent case, there is still the issue of JOINDER which we have written about too many times to list. In short, in order to properly join together MULTIPLE DEFENDANTS in the same lawsuits, those defendants needed to have done the SAME CRIME AT THE SAME TIME. The actual legal terminology is the “same transaction or occurrence.”

      In the bittorrent world, that essentially means that the bittorrent users (now John Doe defendants) needed to have taken part in downloading and uploading copyrighted Malibu Media’s movies in the same bittorrent SWARM.

      Case consolidations have killed large sets of copyright infringement lawsuits where each of a plaintiff attorney’s cases are plagued with the same inherent flaws: they sue groups of John Doe Defendants for activities they participated in at unrelated dates and times.

      While this argument of improper joinder does not become relevant until a defendant is “named” as a defendant (meaning, served with paperwork which means they are no longer a John Doe, but their real name has been listed in an “amended complaint” in the case’s docket), it is still a problem with pretty much EVERY bittorrent case today (with exception of the various lawsuits by Kevin Harrison and Paul Lesko in his 4Twenty lawsuits where they sometimes sue the swarm rather than specific John Doe Defendants). However, it is not relevant to this discussion of case consolidations, but it was still worth noting.

      The Problem With The Smaller “John Doe” Lawsuits – Different CASE LAW in the same court.

      The problem many copyright trolls are now facing in the courts is that NOW THAT THEY HAVE CHANGED THEIR LAWSUITS TO SUE SMALLER NUMBERS OF DEFENDANTS, they usually “forget” to inform the court of RELATED LAWSUITS that they have also filed against other bittorrent users (this violates a number of federal courts’ local rules which could jeopardize their many cases).

      Different Judges Give Inconsistent Rulings

      The result of the plaintiff attorneys not telling the courts of the HUGE NUMBER OF LAWSUITS IN EACH COURT (you can look them up on http://www.rfcexpress.com just to see a few examples) is that each case gets assigned to a different judge (copyright trolls love this and actually rely on this when forum shopping), and each judge interprets the law as he understands it.

      In short, not linking the case together results in some bittorrent cases being dismissed by some judges in one court, and in some bittorrent cases (against other John Doe Defendants) being allowed to proceed by other judges in that same court. In short, not informing the court of related lawsuits results in INCONSISTENT RULINGS by different judges in the same district court.

      [This is called a SPLIT in the court’s decisions (even though the term “split” usually indicates judges from one jurisdiction (e.g., Southern District of New York) ruling one way, and judges from another jurisdiction (e.g., Central District of California) ruling another way.]

      Case Consolidations Give Consistent Rulings

      Case consolidations are the easiest way to avoid inconsistent rulings.

      The wonderful result we have seen from the torrent of lawsuits that have flooded the dockets of many federal courts across the U.S. is that judges have begun to CONSOLIDATE CASES and give one ruling that affects ALL OF THEM. In other words, no more inconsistent rulings.

      As exciting as the idea of case consolidations might be, for a while, we thought that when a judge consolidates cases, it is for the purpose of shutting them all down together (“the bigger they are, the harder they fall”). Such case consolidations have happened to a few attorneys’ cases already, and CASE CONSOLIDATIONS USED TO MEAN THE DEATH OF ALL THAT PLAINTIFF ATTORNEYS’ CASES. However, this is no longer the case with today’s case consolidations.

      As we learned in the Southern District of New York when Judge Forrest clumped together all of Mike Meier’s bittorrent cases, we thought these case consolidations were the end of Mike Meier’s lawsuits once and for all. WRONG. Now, months later, we understand now that Judge Forrest consolidated the cases merely so that she can MANAGE THEM TO AVOID INCONSISTENT RULINGS. To our shock and horror, Judge Forrest had no interest in killing Meier’s cases.

      Now comes Leemore Kushner‘s new bittorrent cases in the Central District of California, all from the Malibu Media, LLC (a.k.a. the “X-Art.com”) plaintiff. Following the copyright troll strategies of Jason Kotzker, Chris Fiore, Adam Silverstein, and Mike Meier, Leemore Kushner (see http://www.kushnerlawgroup.com [great website, by the way; almost as good as Kevin Harrison’s website]) filed a whole bunch of cases in the California Central District Court. However, she failed to tell the court that all of her cases were all related (oops).

      As soon as Judge Klausner took over the case, he noticed Malibu Media, LLC’s other cases, most of them filed by Leemore Kushner (and three by Adam Silverstein):

      CASES FILED BY LEEMORE KUSHNER OF KUSHNER LAW GROUP IN THE CENTRAL DISTRICT OF CALIFORNIA
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00647)
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00649)
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00650)
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00651)
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00652)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03614)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03615)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03617)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03619)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03620)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03621)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03622)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03623)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04649)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04650)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04651)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04652)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04653)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04654)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04656)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04657)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04658)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04660)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04661)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04662)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-05592)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-05593)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-05594)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-05595), and

      CASES FILED BY ADAM M. SILVERSTEIN OF CAVALLUZZI & CALLALLUZZI IN THE CENTRAL DISTRICT OF CALIFORNIA
      Malibu Media LLC v. John Does (Case No. 2:12-cv-01642)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01647)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01675)

      Seeing all of these cases, no doubt the issues of copyright trolling, extortion, clogging up the court’s docket, and whether Kushner actually intends to take these defendants to trial or not was on his mind… or was it? I’m not so sure. Judge Klausner ordererd case consolidations of Kushner’s cases with an ORDER TO SHOW CAUSE why these cases should not be dismissed for… LACK OF PERSONAL JURISDICTION?? [different topic, their jurisdiction was fine. Keep reading.]

      In short, here are a large number of cases, and if Judge Klausner was against these copyright trolling / extortion-based lawsuits, he would have asked Leemore Kushner to explain to the court why these cases should not be dismissed for any of the other INHERENT FLAWS in these bittorrent cases, but NOT PERSONAL JURISDICTION.

      Malibu Media, LLC just solved the Personal Jurisdiction problem.

      The reason I say this is because IF THERE IS ONE THING MALIBU MEDIA, LLC GOT RIGHT IN THEIR LAWSUITS, IT IS PERSONAL JURISDICTION. You could be damn sure that is Leemore Kushner sued someone in California, then THEY LIVE IN CALIFORNIA. If Jason Kotzker sued someone in Colorado, then THEY LIVE IN COLORADO. The plaintiff attorneys have too much common sense from the mistakes of the past two years to sue people in the wrong jurisdiction.

      In summary: I am not happy about the case consolidations.

      For this reason, I am sad to say that I am not jumping up and down for joy about the fact that all these case consolidations took place, because I do not think they are going bust just yet. Anyone that speaks to me knows that I believe these cases have some really bad flaws which, if taken to trial, would cause Malibu Media, LLC to LOSE EVERY TIME.

      However, I suspect Malibu Media knows this as well which is why the game for them is to 1) sue John Doe Defendants, 2) settle as many as they can, 3) “name” those who do not settle, 4) settle those who are named for a higher amount, 5) go for a default judgement ($750 + ~$2K attorney fees, or $30K + attorney fees, but I’ve never seen a $150K default judgement), or dismiss those who are named, 6) re-file individually against those who did not settle, 7) settle with higher stakes, and 8) rinse and repeat.

      In short, I’m not so optimistic about the Malibu Media case consolidations, and neither should you be. Until we see the words “improper joinder,” “scheme,” or “extortion” come out of this judge’s mouth when discussing case consolidations, it looks to me as if we have a troll-friendly judge who just wants to manage these cases.

      You can see his order here.

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