It appears Malibu Media is changing its tactics a bit. Recently in Colorado (and other jurisdictions) people have reported that single John Doe cases were being filed. These new cases may or may not be directly part of a previous mass-Doe Malibu Media case. Note: I haven’t been able to look into this. Also note that on 6 Feb 13, Malibu Media filed a notice of related cases – see below.
Here is one of the cases from Colorado – filed on 5 Feb 13. Malibu Media LLC, v. John Doe subscriber assigned IP address 126.96.36.199, 1:13-cv-00307. complaint_00307(CO) EX_A_7movies_00307(CO) EX_C_othersharedmovies_00307(CO) EX_D_ExculpEvidLetter_00307(CO) Related_Cases_00307(CO)
In this case the John Doe ISP subscriber for IP address 188.8.131.52, is alleged to have downloaded and shared seven Malibu Media movies between 30 Jun 12 – 2 Jan 13. Malibu Media considers this John Doe a “persistent online infringer of Plaintiff’s copyrights.”
To validate their claim of a persistent online infringer, Malibu Media tells the court that they conducted additional monitoring of BitTorrent activity for this IP address and came up with approximately 8 pages of files being shared by this IP address between 1 Aug 12 – 15 Jan 13. EX_C_othersharedmovies_00307(CO) Malibu Media infers to the court that the multiple files listed in the “enhanced surveillance” show this public IP address is a serial infringer of various copyrights over an extended time period. Malibu media does make it clear that the claim of copyright infringement is only for the seven movies it owns.
Following this disclosure, Malibu Media tell the court the following.
As the subscriber in control of the IP address being used to distribute Plaintiff’s copyrighted movies, Defendant is the most likely infringer. Consequently, Plaintiff hereby alleges Defendant is the infringer. Plaintiff has included as Exhibit D a solicitation of exculpatory evidence in the event that Defendant chooses to deny the allegations.
It is unknown if Malibu Media has sent the exculpatory evidence request to this John Doe. If they have, it means they already had his/her contact information from a previous mass-Doe case. See my previous post on the exculpatory evidence request. It could also mean they will send the exculpatory evidence request to the ISP subscriber once they obtain the contact information. Note: As of 8 Feb 13, there was no request for a subpoena to be issued for ISP subscriber information. Based on this, I believe Malibu Media already has the ISP subscriber information and has sent the John Doe an exculpatory evidence request. Sometime after the deadline to reply to the letter has pasted, they will amend the complaint with the ISP subscriber’s name. It will be interesting to see if they file any “filled out” exculpatory evidence request letters for these cases.
So Why The Change In Tactics?
By staying with a single John Doe, they avoid any claim of mis-joinder. If these single John Doe cases do stem from previous mass-Doe cases, there may be an issue with the initial claim that all the John Does in the mass cases are “jointly and severally liable.” For the mass-Doe cases, the claims are usually for single acts of infringement shared among multiple Does. Note: some of the Malibu Media cases are for site-rips, so there could be multiple claims of copyright infringement for these cases.
As all of the previously granted Malibu Media subpoenas for the ISP subscriber information were under the joint and severally liable claim, it is going to be hard for them to now show that their previous claim was wrong and this John Doe should not part of the jointly and severally liable grouping. This of course will only become relevant if one of these Does decides to fight back and challenge Malibu Media. The question about how many other settlements have they obtained from Does for the same movie/hash file will become relevant if there is a judgement against the Doe.
In my opinion, this change is an effort to go after John Does they believe they have a better chance of getting a settlement based on their additional evidence of copyright infringement. Settlement is still the goal of Malibu Media and I still believe Troll Lipscomb doesn’t want details of his BitTorrent collection activity to make it to open court. This means Malibu Media/Troll Lipscomb is going to be willing to settle and still not likely to take it to a full trial. Not a shocker.
Last – If anyone has additional information of these new Malibu Media cases, please post.