As part of this partnership the ISPs have to store all warnings their customers receive. Opponents feared that this data could be used against these individuals in court, which is specifically permitted under the agreement.

“The Content Owner Representatives [MPAA / RIAA] or any other member of the Participating Content Owners Group may use such reports or data as the basis for seeking a Subscriber’s identity through a subpoena or order or other lawful process,” the agreement reads.

However, as it turns out, the first legal consequences aren’t a result of action taken by Hollywood or the major record labels. They come from the adult video publisher Malibu Media, a so-called copyright troll that has filed over 750 lawsuits against alleged infringers this year alone.

In their case against Kelley Tashiro, a middle-aged female nurse from Indianapolis, the company had trouble proving that an infringement actually took place. But instead of backing down, they put their money on the six-strikes warnings databases.

Malibu asked the court to order Comcast to release all data being held as part of the Copyright Alert System. While Malibu is not part of the program, this data may show that the Internet connection was used to share pirated content on more occasions.

“DMCA notices and six strike notices are relevant because these notices may prove a pattern of infringement or notice that infringement is occurring or both,” Malibu noted in its motion.

A copy of the recorded copyright infringements wasn’t enough for Malibu though, the company also asked for details of Tashiro’s bandwidth consumption, suggesting that this could indicate whether she is an infringer or not.

“Bandwidth usage is relevant because people who are heavy BitTorrent users use significantly more bandwidth than normal internet users,” the company’s sweeping generalization reads.

This week Indiana District Court Judge Mark Dinsmore granted Malibu’s motion, which means that Comcast will be ordered to share the requested evidence.

“Plaintiff’s Motion is GRANTED. Plaintiff may serve a third party subpoena on Comcast and Comcast should comply with Plaintiff’s Subpoena Duces Tecum
for deposition as outlined in Plaintiff’s Motion,” the Judge writes.

Comcast has not yet responded to the order, but considering the sensitivity of the subject the Internet provider is expected to file an appeal.

Currently it’s not known whether Tashiro has ever received a copyright alert, but the RIAA, MPAA and other participants in the Copyright Alerts System will not be pleased with these latest developments.

The Center for Copyright Information, which oversees the program, has always emphasized that the program respects the privacy of Internet subscribers. Having it used against alleged downloaders by copyright holders that are not even part of the scheme is bad PR for them, to say the least.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

As a result, small groups of individuals have sprung up around the globe to assist the targets of trolls by keeping them informed and offering forums to share experiences. One of the most famous operations is FightCopyrightTrolls.com (FCT), a husband and wife team that have worked extremely hard to counter troll-like companies in the United States. One such company is now fighting back.

Due to its relentless pursuing of alleged BitTorrent users, Malibu Media is the most prolific filer of copyright lawsuits in the whole of the United States. The video company has already filed a couple of thousands lawsuits in the hope of extracting a few thousand dollars in settlements from each of its targets. This week came yet more evidence that FCT gets under the skin of this litigious company.

In an 18-page motion revealed this week in a case against another alleged file-sharer, Malibu Media described FCT’s ‘Sophisticated Jane Doe” as not only a “self-admitted BitTorrent copyright infringer”, but one at the center of a campaign against the adult video company.

“[Malibu Media] is the target of a fanatical Internet hate group. The hate group is comprised of BitTorrent users, anti-copyright extremists, former BitTorrent copyright defendants and a few attorneys,” Malibu wrote in their motion.

“By administering and using the defamatory blog www.fightcopyrighttrolls.com,
‘Sophisticated Jane Doe’ (‘SJD’) leads the hate group.”

One of the key problems, the porn company explains, is that Jonathan Phillips, the lawyer for the defendant in the case, is part of that group.

“Opposing counsel communicates regularly with the hate group’s leader. Members of the hate group physically threaten, defame and cyber-stalk Plaintiff as well everyone associated with Plaintiff. Their psychopathy is criminal and scary,” Malibu explain.

So what is Phillips’ alleged contribution? Apparently he shares information about ongoing cases with FCT and its members and makes life difficult for Malibu – on Twitter.

“Opposing counsel regularly Tweets with the other members of the hate group. Further, his Tweets are often part of a series of Tweets intended to harass
Plaintiff and its counsel,” Malibu writes.

“Opposing counsel also Tweets about on-going litigation including this case and disparages Plaintiff. He even called Plaintiff a liar.”

The motion, which was originally filed under seal in February, calls on the court to gag both Phillips and the defendant in the case.

“To prevent the spoliation of evidence, Plaintiff respectfully requests that
the Court enter a sealed order preventing opposing counsel and Defendant from talking about the contents of this Motion or [REDACTED] with anyone. If Plaintiff’s intentions are revealed, there is a high probability of spoliation of evidence,” the motion reads.

While some information will remain under wraps, as far as the motion was concerned attempts at secrecy clearly failed.

“This filing was a result of an order from the Northern District of Illinois, which refused to allow Malibu Media to litigate this particular case in the shadows,” Philips told Ars.

“I am happy to practice in United States District Courts where the Seventh Circuit Court of Appeals has made it clear that litigation is to be open, accessible, and able to be reviewed and commented by the news media, the blogosphere, and the public at large.”

The big issue for Malibu going forward is that they appear to have learned little from the demise of other outfits conducting similar litigation in both the United States and Europe. Once opponents get motivated they can have extremely long memories and no amount of threats will make them stop. Hunting trolls effectively becomes a sport, and it rarely ends well.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

A cornerstone of the system sees the major labels and movie studios sending notices of infringement to ISPs which they in turn forward to their subscribers. Records of these notices are then held in a database, which copyright holders in the six-strike scheme may subsequently use in legal action, if they feel that is appropriate.

“The Content Owner Representatives [MPAA / RIAA] or any other member of the Participating Content Owners Group may use such reports or data as the basis for seeking a Subscriber’s identity through a subpoena or order or other lawful process,” the agreement reads.

Trouble is, any data on file is at risk of being accessed by a third party if they can convince a judge they have good reason to obtain it. And that’s exactly what the largest filer of copyright complaints in the United States is now attempting to do.

Malibu Media is well-known as a filer of many lawsuits against alleged file-sharers. Indeed, earlier this week the company was featured in an article which confirmed its status as the most prolific filer of copyright lawsuits in the entire United States.

In a case which has been documented by FightCopyrightTrolls since its initial February 2013 filing, Malibu has been struggling to pin an infringement on Kelley Tashiro, a middle-aged female nurse from Indianapolis. Faced with an uphill battle, Malibu has now turned to Tashiro’s ISP, Comcast, to find out what information it holds on her.

Perhaps inevitably, Malibu is attempting to find out whether or not the IP address allocated to Tashiro has ever been subject to infringement allegations by other copyright holders. In addition to details of any DMCA notices forwarded, Malibu has asked a judge to order the release of data being held as part of the Copyright Alerts System.

“DMCA notices and six strike notices are relevant because these notices may prove a pattern of infringement or notice that infringement is occurring or both,” Malibu writes in its motion.

In an indication of just how desperate Malibu has become, the company also wants details of Tashiro’s bandwidth consumption, as if that somehow indicates whether she is an infringer or not.

“Bandwidth usage is relevant because people who are heavy BitTorrent users use significantly more bandwidth than normal internet users,” the company’s sweeping generalization reads.

In summary, Malibu points out to the court that without this and other items of information from Comcast they have no chance of winning the case, another indication of how flimsy IP address-only evidence is now being viewed.

Whether Comcast will comply or not remains to be seen. A similar case in April 2013 which demanded information from Verizon was subsequently dropped.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

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.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Ever since, many hundreds of thousands of Internet users there have been plagued by threats from rightsholders of almost every kind of media, with many settling for amounts up to 1,200 euros a shot.

As we know, these pay-up-or-else schemes also spread to the UK and then to the United States, proving particularly popular with porn companies out to prop up their failing business models. One such outfit, Malibu Media, has filed dozens of lawsuits in the United States and recently made efforts to export their project back to Germany. It didn’t go well.

Last year, Malibu issued complaints in Germany that Internet subscribers had illegally shared eight of their X-Art movies including “Flexible Beauty” and “Young passion”. As a result the company wanted to obtain the identities of Internet subscribers behind the IP addresses it held on file in order to extract settlements from them.

However, as outlined in a recently published ruling by the District Court of Munich, the complaints proved problematic.

Firstly, Malibu claimed to be the creator of the movies but the District Court said that the company’s name was nowhere to be found on the videos in question, only references to the X-Art brand. As a result Malibu were unable to convince the Court that they held the rights.

Next there was the issue of distribution. Although Malibu claimed that the movies had been released worldwide, it failed to demonstrate that they had either been released locally on DVD or via an online platform. On that basis the District Court found that the works had never been released in Germany and were therefore ineligible for protection under the Copyright Act.

Finally, the District Court said that the actual content of the videos raised issues under Germany’s Copyright Act. The Court noted that the videos showed “only sexual processes in a primitive way” and are therefore classified as “pure pornography.” As such, the productions are not a “personal intellectual creation” and are not entitled to protection under Germany’s Copyright Act.

The District Court’s ruling is definitely a setback for Malibu in Germany but it should be noted they have been extremely persistent in the United States following earlier problems. They’ll probably be back after some fine-tunes, there’s simply too much money at stake to give up now.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.