It’s well known that while copyright trolls may suggest they are going to pursue all of their cases to the bitter end, they simply do not. Plenty of cases are dropped or otherwise terminated, although the precise reasons why this happens usually remain a closely guarded secret.
Today, however, we have a much clearer idea of what happens behind the scenes at Malibu Media, one of the main companies in the United States currently chasing down BitTorrent users for cash settlements.
The company was required by Illinois Judge Milton Shadur to submit a summary of its activities in Illinois and, as spotted by troll watcher SJD over at Fight Copyright Trolls, there was an agreement that it could remain under seal.
Somehow, however, that document has now became available on Pacer and it reveals some rather interesting details on Malibu’s operations.
Overall, Malibu Media reports that it filed cases in Illinois against 886 defendants. According to the company, just 174 have paid up so far, with 150 of those hiring a lawyer to do so.
While 100 cases are still open (including 42 still at discovery stage and 30 in negotiations), for various reasons a total of 612 defendants paid nothing at all and the cases against them were dismissed. Malibu reveal the reasons for this in their filing, and they’re quite eye-opening to say the least.
Hardship
“Hardship is when a defendant may be liable for the conduct, but has extenuating circumstances where Plaintiff does not wish to proceed against him or her,” the Malibu document explains.
“Examples are when a defendant has little or no assets, defendant has serious illness or has recently deceased, defendant is currently active duty US military, defendant is a charitable organization or school, etc.”
Out of 886 defendants, Malibu reports that cases against 49 were dropped on hardship grounds.
Insufficient Evidence
It has long been said that an IP address alone isn’t enough to identify an infringer and Malibu’s own submission to the court underlines this in grand fashion.
“Insufficient evidence is defined as when Plaintiff’s evidence does not raise a strong
presumption that the defendant is the infringer or some other ambiguity causes Malibu to question the Defendant’s innocence,” the company writes.
So, in an attempt to boost the value of the IP address evidence, Malibu says it investigates further to determine whether the account holder is in fact the infringer. The company says it looks in three areas.
1. Length of the infringement, i.e. how long it took place, when it began, when it ended, whether it took place during the day or night, and any other patterns.
2. Location of the residence where the infringement occurred, i.e. whether it is in a remote location or with other dwellings within wireless access range.
3. Profiling suspected pirates using social media (Facebook, Twitter)
The third element is of particular interest. Malibu says that since July 2012 it has been monitoring not just its own content online, but also piracy on music, movies, ebooks and software. It compares the IP addresses it spots downloading other pirate content with the IP addresses known to be infringing copyright on its own titles.
The data collected is then used to profile the person behind the IP address and this is compared with information gleaned from sites including Facebook and Twitter.
“Oftentimes, a subscriber will publicly admit on social media to enjoying sports teams,
music groups, or favorite TV shows. Malibu will compare their likes and interests to their [downloads of other content] and determine whether the interests match,” the company explains.
So in what circumstances will Malibu dismiss a case on evidence grounds?
In the company’s own words:
-Multiple roommates within one residence with similar profiles and interests share a single Internet connection
-The defendant has left the country and cannot be located
-The results of additional surveillance do not specifically match profile interests or occupation of Defendant or other authorized users of the Internet connection
-The subscriber is a small business with public Wi-Fi access, etc
From a total of 886 defendants, cases against 259 were dropped due to insufficient evidence.
The Polygraph Defense
In the absence of any other supporting evidence, how can a subscriber prove a negative, i.e that he or she did not carry out any unlawful file-sharing? Quite bizarrely, Malibu says that it will accept the results of a lie detector test.
“[M]alibu will dismiss its claims against any Defendant who agrees to and passes a
polygraph administered by a licensed examiner of the Defendant’s choosing,” the company told the court.
So has anyone taken the bait? Apparently so.
“Out of the entirety of polygraphs administered within the United States by Malibu, no Defendant has passed and all such examinations have subsequently led to the Defendant settling the case,” Malibu writes.
No discovery
In order for Malibu to pressure account holders into settling, it first needs to find out who they are from their ISPs. Malibu’s submission reveals that this is not always possible due to:
– ISPs not retaining logging data for a long enough period
– Subpoenas being quashed due to cases being severed
– Information held on file at ISPs does not match identities of an address’s occupants
– ISP could not match the IP address with a subscriber at the time and date stipulated by Malibu
From a total of 886 defendants, cases against 304 were dropped due to failed discovery.
Cases dismissed due to settlement / actual judgments obtained
In total, 174 cases were settled by defendants without need for a trial but the amounts paid are not included in the document. However, the submission does reveal that two cases did go to court resulting in statutory damages awards of $26,250 and $15,000 respectively.
Conclusion
Malibu’s submission points to a few interesting conclusions, not least that the vast majority of their cases get dismissed for one reason or another and a significant proportion simply do not pay up.
The document also suggests that Malibu are working under the assumption that an IP address alone isn’t enough to secure a settlement and that additional social media-sourced evidence is required to back it up.
This information, plus the reasons listed by Malibu for not pursuing cases, should ensure that even less people are prompted to pay up in future.
