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