For the past seven or eight years alleged file-sharers in the United States have found themselves at the mercy of so-called copyright trolls and right at the very forefront are those from the adult movie industry.
By a country mile, adult video outfit Malibu Media (X-Art) is the most litigious after filing over 4,500 cases in less than 4 years, but news coming out of New York should give this notorious troll pause for thought.
Events began in June when Malibu filed suit in the Eastern District of New York against a so-called John Doe defendant known only by his Verizon IP address, 220.127.116.11. The porn outfit claimed that the individual was responsible for 18 counts of copyright infringement between February and May 2015.
Early August the defendant received a letter from Verizon informing him that a subpoena had been received which required the ISP to identify the individual using the IP address on May 23, 2015. This caused the defendant to fight back.
“Since Defendant’s IP addresses were assigned dynamically by the ISP, even if Defendant was identified as the subscriber assigned the IP address, 18.104.22.168, at 03:31:54 on May 23, 2015, it doesn’t mean that Defendant is the same subscriber who was assigned the IP address at the other seventeen occasions,” the defendant’s motion to quash reads.
“If Defendant’s identifying information is given to Plaintiff, Plaintiff, as part of
their business model, will seek settlements of thousands of dollars claiming Defendant’s responsibility for eighteen downloads of copyright protected works under the threat of litigation and public exposure with no serious intention of naming Defendant.”
Case specifics aside, the motion also contains broad allegations about Malibu Media’s entire business model, beginning with the manner in which it collects evidence on alleged infringers using BitTorrent networks.
Citing a University of Washington study which famously demonstrated a printer receiving a DMCA notice for copyright infringement, the motion concludes that the techniques employed by Malibu for tracking down infringers are simply not up to the job.
“The research concludes that the common approach for identifying infringing users in the poplar BitTorrent file sharing network is not conclusive,” the motion notes.
“Even if Plaintiff could definitively trace the BitTorrent activity in question to the IP-registrant, Malibu conspicuously fails to present any evidence that John Doe either uploaded, downloaded, or even possessed а complete copyrighted video file.”
While detection is rightfully put under the spotlight, the filing places greater emphasis on the apparent extortion-like practices demonstrated by copyright trolls such as Malibu Media.
Citing the earlier words of Judge Harold Baer, the motion notes that “troll” cases not only risk the public embarrassment of a misidentified defendant, but also create the likelihood that he or she will be “coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations.”
The motion continues by describing Malibu as an aggressive litigant which deliberately tries to embarrass and shame defendants in the aim of receiving cash payments.
“[Malibu] seeks quick, out-of-court settlements which, because they are hidden, raise serious questions about misuse of court procedure. Judges regularly complain about Malibu,” the motion reads.
“Malibu’s strategy and its business models are to extort, harass, and embarrass
defendants to persuade defendants to pay settlements with plaintiffs instead of paying for legal assistance while attempting to keep their anonymity and defending against allegations which can greatly damage their reputations.”
Following receipt of the motion, yesterday Judge Steven I. Locke handed down his order and it represents a potentially serious setback for Malibu.
“Because the arguments advanced in the Doe Defendant’s Motion to Quash raise serious questions as to whether good cause exists in these actions to permit the expedited pre-answer discovery provided for in the Court’s September 4, 2015 Order, the relief and directives provided for in that Order are stayed pending resolution of the Doe Defendant’s Motion to Quash,” Judge Locke writes.
If putting the brakes on one discovery subpoena wasn’t enough, the Judge’s order lists 19 other cases that are now the subject of an indefinite stay. However, as highlighted by FightCopyrightTrolls, the actual exposure is much greater, with a total of 88 subpoenas in the Eastern District now placed on hold.
As a result, ISPs are now under strict orders not to hand over the real identities of their subscribers until the Court gives the instruction following a ruling by Judge Locke. In the meantime, Malibu has until October 27 to respond to the Verizon user’s motion.