R&R Bomb Hits The PA Bellwether Case (12-cv-02088-MBB, Malibu Media v. John Does 1-22)

The tides do turn, if sometimes slower that what we would like.  I will try to keep this short as I tend to get a bit long-winded on these posts.  What I have attached is a Memorandum of Law & Motion crafted by Jordan Rushie and Marc Randazza (R&R), requesting the PA court handling the Bellwether trial (12-cv-02088-MBB, Malibu Media v. John Does 1-22) dismiss the Amended Complaint and strike paragraph #53 of it.   R&R_MOL_MTD_02088(PA)

Yes you are seeing that correctly, Marc Randazza is part of a team supporting one of the defendants.  It really doesn’t surprise me too much that he has done this.  A lawyer has a duty to do the best for his client, and clients do change.  He has/will bring internal knowledge of a Copyright Troll operation to his side.  He hasn’t worked for Malibu Media, but the business model is the same.  He knows what the weaknesses are and can help craft an effective strategy.  It will also be hard for Plaintiff to attack him, as he can show he has worked both sides – wants to protect the works of the content owners as well as protect the innocent defendants.  It will also be good for his professional standing.  This will not clear the past actions of Randazza, but I’m still happy he is not assisting Plaintiff.  Enough of this – “On with the show!”

Raul described this motion as an “H-Bomb,” and I agree.  Wow!  The motion is broken into sections showing that Malibu Media:

  • Lacks Standing to Prosecute This Action Because It Does Not Own the Works in the Amended Complaint
  • Does Not Possess The Right to Sue Defendant for Previous Infringement of its Now-Owned Works
  • Plaintiff Failed to Join Indispensable Parties
  • Malibu Media Does Not Own Any Exclusive Rights In the Identified Works
  • Disobeyed this Court’s order, and needs to show cause as to why it should not be sanctioned. Further, the Paragraph Should Be removed because it is Immaterial, Impertinent, and Scandalous

R&R do a great job in laying the foundation of the Copyright Trolling business model and the specifics of this case.  They back up their views with a wealth of supporting documentation, as well as providing it in a professional and effective way. 

I really like section detailing the copyright assignment to Malibu Media.

In this case, the Assignment contains no provision of any exclusive rights from Field to Malibu Media. The assignment is silent as to what, if any, rights Field has within the films. Rather than transferring any discernible exclusive rights under Section 106 to Malibu Media, Mr. Field has executed what is essentially a quit-claim deed to Malibu Media, giving Plaintiff a jumble of unidentified rights (or perhaps none at all) that, on the face of the assignment, do not include the rights required to sustain an infringement action: exclusive rights under Section 106.(18)  Absent any indication that Field possessed full, undivided interest in the copyrighted works or exclusive rights therein, there is no basis on the face of the assignment for finding that Malibu Media acquired any exclusive rights and nothing in the assignment addresses past infringement.(19)

(18) Even if all exclusive rights were granted, the right to sue for past infringement, as discussed infra, is not transferred unless the instrument of transfer expressly says so, as argued infra.

(19) The assignment’s vague language is eerily similar to the same quitclaim language used by now-defunct copyright infringement enforcement operation Righthaven LLC, which used similarly vague language concerning the rights it acquired in the works underlying its infringement lawsuits. Upon discovering a secret agreement between Righthaven LLC and the works’ original creators which specifically deprived Righthaven LLC of exclusive rights in the works, U.S. District Judge Hunt ultimately characterized Righthaven LLC’s reliance on this quitclaim language as “disingenuous,” writing that:

Righthaven led the district judges of this district to believe that it was the true owner of the copyright in the relevant news articles. Righthaven did not disclose the true nature of the transaction[.] As the [the original creator] retained the exclusive rights, never actually transferring them to Righthaven. Democratic Underground, 791 F. Supp. 2d at 976.

Please take the time to read and comment on what you think of this motion.  I can see this being used by other Pro Se Does and Doe Defenders on other cases, to include non-Malibu Media ones.

Happy Turkey Day

  DieTrollDie :)

About John Doe (DieTrollDie)

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
This entry was posted in Bellwether and tagged , , , , , , , , , , , . Bookmark the permalink.

12 Responses to R&R Bomb Hits The PA Bellwether Case (12-cv-02088-MBB, Malibu Media v. John Does 1-22)

  1. sharp as a marble says:

    the part which i find to per the most potentially damning is where they point out that MM has sued others across the country for the same swarm and have received settlements therein, and may have recouped their full statutory damages already. discovery of the settlement amounts across the country would show if they have, and then if they kept pursuing that swarm it would actually be criminal. plus they would open them selves to really easy mass lawsuits against them.

  2. Raul says:

    This motion makes a lot of clever arguments. One of my favorites hinges on a predatory/sleazy litigation tactic of Malibu Media which is to amend the complaint against the Doe to allege additional infringements with a view to terrorize the Doe into a higher settlement. The motion weaponizes this tactic and fires it at the troll as follows:

    “Malibu’s Amended Complaint demonstrates a clear violation of both of the court’s Orders
    limiting its use of subpoena power.The Court unequivocally ordered Malibu to use the results of
    discovery for “this case … as set forth in the Complaint” which at the time of the is an
    infringement claim against twenty-two Pennsylvania Does allegedly sharing “Tiffany – Sex With
    a Supermodel.” The additional Works and allegations concerning Nucorp were not
    contemplated in the Court’s May 18 2012 and October 3, 2012 Orders –in fact, such abuse of the
    subpoena powers was specifically prohibited. Malibu has, at its whim, decided to turn this
    litigation into a new case by adding the additional Works, and in doing so violated two court
    orders.
    Thus, it is appropriate for this court to issue an Order to Show cause as to why Malibu
    should not be sanctioned for these transgressions. Franklin Mint, Co. v. Boyd, Case No. 99-
    03823 2000 WL 1716758 at *4 (E.D. Pa. Nov. 17, 2000) (issuing order to show cause for
    contempt when litigant disobeyed the court’s lawful order).”

    Great stuff! I RECAPPED the Pietz Declaration but it has not hit yet as it lays out this common predatory/sleazy tactic in detail.

  3. This motion is a fantastic piece of work and I congratulate Mr. Randazza and Mr. Rushie for it. This motion inspired me to start a “Favorite Filings” list.

    Between this motion and the request to the copyright office to revoke Malibu’s registrations, I think Malibu is quickly becoming stuck like a pig in mud!

  4. Anonymous says:

    I know there is some skepticism and cynicism regarding Randazza’s participation in this case, but one thing that is beyond doubt is that he plays to win. The Doe represented by R&R is not going to be looking to slink away with as little trouble as possible as they now have counsel that has figuratively burned another copyright trolling operation to the ground. When Fantalis was holding MM’s feet to the fire we were joking about how Brigham and Colette should be prepared to lose their homes and cars; now that could be a very real possibility.

    I do share some of the incredulity over Randazza representing a defendant vs. an adult film studio. I don’t actually have that much of a problem with idea that a lawyer’s job is to advocate for his client’s interests, and I don’t even have that much trouble with the idea that a person can support/understand two opposing viewpoints simultaneously. That said, Marc does a lot of work for the adult entertainment industry and I don’t see how this is going to help that business, he’s free to choose who he represents so I don’t see a reason for him to take cases that may hurt his reputation with his bread and butter clients. The Righthaven cases were different enough in the details that it didn’t really seem like that would hurt the porn trolls, as they were filing cases on their own behalf (at least at that time, now we have MM, AF, etc.), but success here could put a lot of adult film companies out of the copyright trolling business and directly injure if not bankrupt an adult film studio.

    Perhaps the trolling for Liberty Media hasn’t worked out so well after all or has run its course. I don’t think Liberty has been that active with BitTorrent cases recently, and moved on to going after cyberlockers. Maybe now that it’s become publicly clear that many of these companies are shell companies using invalid or nonexistent copyright registrations, fraudulent claims and abusive practices, Marc figures it’s better to cash in on the PR opportunity presented here and be remembered as a hero. The way companies like Malibu and Prenda are behaving, it is only a matter of time before they get dismantled, and Fantalis already did a lot of the legwork by establishing what Malibu will pay to keep off the public record. What do you think will be on Marc’s discovery requests if this case gets that far? With MM in a weakened and exposed position, somebody is going to get the glory of tearing them apart, so why not him?

  5. Happy Thanksgiving Day, DieTrollDie!

  6. John Doe says:

    “As Malibu does freely distribute the relevant films,9 it is entirely possible, if not most likely, that the initial seeder had permission to distribute the files via BitTorrent.10″
    ~pg4

    Finally someone touched on this. MM distributes its works for free viewing in multiple places on the net, then proposes to sue people who share their works? Seems to me like MM has abandoned its copyright. I’d love to see what a jury thinks about a company that gives away its full, functioning products for free (in this case, millions upon millions of views on various sites, at least in the printouts that I have collected as of a couple months ago) and then proposes to sue for copyright infringement.

  7. JP Doe says:

    I may be on the periphery of one of 6 newer Malibu Media cases filed in Colorado on 12/04/12 against multiple John Does, listed at bottom. Additionally, on 02/05/12, cases were filed against 14 John Does by IP address, which may be individual filings from some of their earlier cases – I haven’t had the time or PACER access funding to have a look at them all.

    I realize that the point of these suits is more shakedown that legal strength, but I have a couple of comments about possible flaws in the filing based on what I believe, but am not certain, may be the case in the instance with which I am familiar:

    – The file names downloaded, do not necessarily give the downloader any indication of copyrighted content as claimed – names such as “Kayla’s first time” could be uncopyrighted amateur content, and it is possible for instance that the downloader was seeking such and initiated the download of copyrighted material mistakenly

    – It’s not clear that the downloading initiated was successfully completed, or that it might even have been terminated by the downloader after realizing the content was not what they were seeking; nor that the downloader viewed, shared or retained the file if it was downloaded

    – The download mechanism may have been through a website interface – possibly serving up a file collected by torrent, I don’t have the technical expertise to evaluate that – in which case the means of downloading may not be as described in the one of the filings that I examined (running torrent software on the defendant’s PC), and the claimed sharing associated with running a torrent would not have taken place.

    15 Malibu Media, LLC (pla) codce 1:2012-cv-03168 820
    Malibu Media, LLC v. John Does 1-19
    16 Malibu Media, LLC (pla) codce 1:2012-cv-03169 820
    Malibu Media, LLC v. John Does 1-14
    17 Malibu Media, LLC (pla) codce 1:2012-cv-03170 820
    Malibu Media, LLC v. John Does 1-8
    18 Malibu Media, LLC (pla) codce 1:2012-cv-03171 820
    Malibu Media, LLC v. John Does 1-14
    19 Malibu Media, LLC (pla) codce 1:2012-cv-03172 820
    Malibu Media, LLC v. John Does 1-23
    20 Malibu Media, LLC (pla) codce 1:2012-cv-03173 820
    Malibu Media, LLC v. John Does 1-15

  8. Doe says:

    I just read the whole filing and I wanted to bring up 2 points:

    Since the maximum damages is $150,000 per work and not per defendant and “For any two or more jointly and severally liable infringers, a plaintiff is entitled to one statutory damage award per work”
    Does the “severally liable infringers” mean the group of Does in the case or the greater “swarm” as a whole, which the filing mentions can be global in scope and require disclosure of all of the settlements from previous cases.

    And is it true that Malibu Media must also try the “initial seeder” in the case or face dismissal of it’s claim?
    “Fundamental fairness and judicial economy compel Malibu to either try its case against
    the initial seeder and swarm in full or face dismissal of its claim.”

    My apologies if I am interpreting this incorrectly, and quotes were pulled from page 24.

    Thanks!

  9. Albert Einstein says:

    Great spirits have always encountered violent opposition from mediocre minds. -Albert Einstein

  10. Pingback: The Bellwether Trial (Malibu Media v. Does) – What Have We Learned? My Five Takeaways From the Trial | Philly Law Blog

  11. Pingback: Talking Torrents: Judge Baylson Issues Final Memorandum Opinion on the Bellwether Trial; Kills Mass Joinder Torrent Actions | Philly Law Blog

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s