Malibu Media Changes Tactics – Single Does & “Enhanced Surveillance”

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 174.51.234.104, 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 174.51.234.104, 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.

DieTrollDie :)

About 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
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18 Responses to Malibu Media Changes Tactics – Single Does & “Enhanced Surveillance”

  1. Anonymous says:

    So they are infringing other people’s copyrights in order to pursue their cases which have a commercial, for-profit purpose? Sounds like admitting that in court documents is a very foolish move, not only does it undermine their credibility (committing copyright infringement to pursue copyright infringement) but is just asking for lawsuits from these other rights-holders especially since their names and reputations are being exploited for gain by MM attorneys and some of these other content producers may not appreciate being associated with MM’s antics.

    In order for them to have reasonable proof that this IP actually downloaded these files they would have to download them in whole or in part (given judge Wright’s recent CA order it sounds like proof of downloading the whole file should be the standard for even filing a case). I would be curious to know if MM or their investigators have any sort of agreement with these other rights-holders allowing them to make the copies that are necessary for their investigative purposes.

  2. pissed off Doe says:

    Now, can this be legal? Sounds like they are not only monitoring the honeypots now, they are screening the IP addresses for the potential Doe’s. How is this different from wiretapping that law enforcement uses after they get the court order?

    http://www.cybertelecom.org/security/ecpaexception.htm

  3. IndianaDoe says:

    There’s an interesting connection between the actual complaint and the “Other Shared Movies” file. There’s Malibu Media owned videos which show up on the extended movie listing, but they’re not claiming them as infringements (i.e. “11/10/2012 X-Art – Wild Things – Silvie, Grace [1080p].mov” ) . Seems odd that they’re using that as supporting evidence to establish behavior, but not actually suing for it.

  4. notthedoe says:

    Someone I know received one of the “exculpatory evidence requests” last week. This person had been previously involved in a joint case which was dismissed. It certainly looks like they used the first case to farm names to begin looking for easy pickings. It looks like all single doe cases in the Eastern District of Michigan have one such request on file in the exhibits. (Would this indicate that they had been filled out and returned, or would a blank copy have been included in the exhibits?)

    My friend is understandably nervous, even though the person in question doesn’t participate in filesharing activities (though there was an unsecured router in the person’s apartment at one point.)

    • Donot Spamm says:

      Hi notthedoe, can you share the experience of your friend? I also recently received a single doe case in the eastern district of michigan. Did your friend hire a lawyer?

  5. Anony Mouse says:

    From your post it sounds like what they are doing is uploading site rips to torrent sites, which are still a single torrent file, but is full of all their site content in a single download. So, even if they do find a “guilty” party, it is still for a single torrent download but with multiple video files in it. In my mind that should be considered a single infringement, but they are wording it so it sounds like the Doe is seeking out movies on torrent sites all the time. This bogus tactic should be explained in clear English by any Doe defenders.

  6. Doe.v.MM says:

    This seems more to me as desperation on these Trolls!
    It seems that the mass joinder filings are not producing enough revenue as before. Thus, they have to even dig deeper to generate scare tactics for cash settlement. So, the Trolls are now compelled and believe that filing individual suits may coerce more settlements.

    But, think about it, from a cost/benefit analysis, this will be more burdensome, as they (Trolls) will have multiple individual hearings to attend to and filing fees to pay for. They will be running from court room to court room all day long, and filing more complaints, motions, response, etc. These trolls are individual attorneys (not bonafide law firms), I highly doubt they even have any clerks or assistants working for them. They have to do everything themselves, even the mundane stuff like mailing notices, etc., and keeping track of their hearing calendars.

    As defendants, the best strategy will be to drag out the case…a war of attrition.
    As, I have suggested, just fight back. Respond to the lawsuit, read about procedure and how to respond to a lawsuit from your local library. Ask for help from friends….Because….

    In the end, their evidence is still weak, i.e. IP address but no identity of the actual infringer.
    Take that to trial, and no jury will ever convict on such ambiguous link between subscriber and infringer. It will never get that far anyway, these trolls will just get sloppy and dismiss the case, or worse yet… They are sanctioned by the court for filing such frivolous crap.

    Keep fighting and don’t give em a dime.

  7. Pingback: The Different Tactics Copyright Trolls Employ « anonymouseavenger

  8. doecumb says:

    (1) Most consumer accounts have dynamic IP addresses, that change daily or often. Is the allegation directed toward a residence with a static IP address? It’s possible that the allegation work is guesswork based repeated alleged activity “geolocated” to the same town. As usual, trolls are making forensic claims that have not been verified, expecting the technology claims won’t be challenged at trial.

    (2) There has never been an indication that allegations can show data about how much of one file is attributed to one IP address. The complaint says:
    “IPP Limited downloaded from Defendant one or more bits of each digital media file”.

    There are more than two and a half billion bits in a 300 MB file. Without information about the amount, the alleged participation could be insignificant. The portion of a single bit to a 300 MB file is similar to a small FRACTION of one single LETTER compared to the total words in the largest paper encyclopedia ever made.

    If things ever went to trial, this point would be tested, along with other suspect troll technology claims.

    (3) The fact that at Malibu Media/Kotzker/Lipscomb filed 73 cases in Colorado itself says something about the scam. Patrick Collins with the same troll lawyer group filed 23 cases in the same time range. That’s 8 cases per month for 2 plaintiffs in a single civil court district. Could any lawyer (small office, as DoevMM noted, reasonably attend to that amount of real cases, moving toward trial instead of just demands ?
    Could the total of 421 Federal cases nationwide by either Malibu Media or Patrick Collins be viewed as related cases?

  9. Doe says:

    If a multiple Doe case was terminated/dismissed, can they later file a new case on the the Doe’s individually?

  10. doggedt says:

    So if we read the definitions of Permissive Joinder and Compulsory Joinder, noting that the complaints that we’ve read specify neither, would this information, see below, be correct? Can anybody help us understand, confirm, correct or verify our understanding?
    By definition, the Does accused do not seem to fit the descriptor for Joinder. In the Permissive Joinder situation, the IP addresses that were “snap shotted” are being held equally responsible for the accusations as IP addresses (the rest of the swarm) not being named or accused.
    Further, this Joinder is made under the assumption that every IP address in the swarm shares the same file in the literal sense; the assumption all IP addresses have a full, working copy of the file (any downloaded information will not work unless it is in its full, complete state). ***In the case of partially downloaded files that may work under specific circumstances or raw-media software decoding, how would this differ from the free samples readily available on their websites or any legally sponsored, free hosted content?***
    In any case, there is no way possible to judge from the methods plaintiffs used to gather the information being presented against those IP’s, the size or integrity of any given file in relation to the alleged connection between the IP and the copyrighted works.
    In other words, those that potentially accessed the copyrighted works in a forum of shared, freely downloadable material under other circumstances, such as a movie trailer or teaser, are being held responsible for the actions of actual, intentionally infringing IP addresses. ***Or for that matter, IP’s that have many full working files vs IP’s with a ton of non-working partials or none!***
    Are we missing something or misreading/misinterpreting the allegations?

  11. doggedt says:

    In the compulsory situation, the case should not continue as the rest of the swarm (unidentified IP addresses) are not present. By the plaintiffs own description of the alleged infringement, the IP addresses of rest of the swarm is equally responsible for the allegations as the other IP addresses in the complaint.
    The information presented by the plaintiffs is merely a “snapshot” of the offending swarm of IP’s- if the file referenced by the plaintiff is part of a multi-file torrent or other multi-file download, that file is only part of a larger swarm, all contributing data and all sharing bits of data back and forth as this then would mean that there are many more IP addresses than are not referenced in the plaintiffs swarm “snapshot”.
    Furthermore, there is likely a logical and mathematical explanation to the idea that in the given timeframe, the mechanics of the torrent protocol and IP/swarm “snapshot”, that the listed IP’s have the same amount of any given file; the give-away here is how IP ‘X’ has more files in their list than IP ‘Z’.
    In an example of the level of absurdity in this thought process, we look to find a common interaction (being the equivalent to the torrent/data) that can be expected between a ‘swarm’ of IP addresses in any given timeframe (period of time plaintiffs “snap-shotted” IP addresses). For our simple example, our common interaction will be using the filler noise “um…” in conversation with other people. Imagine this, one day, in the city of, let’s say Gaylord, MI, using the sound “um…” in conversation becomes illegal. In order to enforce this law, surveillance is installed all over areas deemed to be the most substantial offenders places like: elementary schools, malls, shopping venues, musical concert, etc… (consider this to be the difference between monitoring one torrent/file and not the other, or naming 1 copyrighted work, but not the others).
    While the surveillance may capture some instances that look like or sound like “um…” there is absolutely NO WAY possible that all uses of the sound “um…” can be captured. In our example, these misses are the missing IP’s from the rest of the swarm. Even if the IP’s are all accounted for, how can Joinder be made if they are filed in a different court or that may even be in another State or country?
    Again, are we missing something or misreading/misinterpreting the allegations?

  12. Interesting... or is this related or important ? says:

    What is Click Here LLC (http://www.corporationwiki.com/California/Los-Angeles/click-here-llc/103426202.aspx) (http://www.corporationwiki.com/California/Malibu/brigham-field/67218878.aspx)

    Click Here LLC has a location in Los Angeles, CA. Active officers include Brigham Field and Colette Pelissier. Click Here LLC filed as a Domestic on Friday, January 27, 2012 in the state of California and is currently active. The company’s line of business includes Hold Intellectual Property.

    is this related or important ? (http://whois.domaintools.com/colettefield.com) or this?
    (http://reversewhois.domaintools.com/field%2c-brigham)

  13. I like people who shake other people up and make them feel uncomfortable.~ Jim Morrison says:

    DTD – just sent an email message to you & SJD to help “shake the tree” under the KL shakedown crew

  14. Pingback: DTD (All Ahead Full) – Syfert/Defendant Oppold Objection & PA Bellwether Case | DieTrollDie

  15. Pingback: PA Bellwether Case – Recap Of The 6 June 2013, Hearing | DieTrollDie

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