FL Judge Requires 5th Amendment Like Advisement To Doe Defendants, 8:12-cv-01419, Malibu Media LLC, v. John Does 1-18

On 20 Aug 12, Judge Thomas G. Wilson, issued an Amended Order allowing Troll Keith Lipscomb to take leave to serve third-party subpoenas on the ISPs; case is 8:12-cv-01419, Malibu Media LLC, v. John Does 1-18.   Amended_Order_01419(FL)   Docket   Complaint_01419(FL)   The initial order from the court was issued on 7 Aug 12 (7Aug12_order_01419(FL)).  The initial and amended orders are interesting and probably can best be described as a warning to the Copyright Trolls.  The Judge appears to be telling the troll that if they have to play fair and actually following through with claims and not just make threats to all the ISP subscribers. 

The court stated Plaintiff had good cause to get the subpoena, but its broad request doesn’t protect the possibility that innocent people may be publicly identified with the allegations of illegal downloading pornography.  Based on what the judge ordered (and warned the Troll), I believe the judge doesn’t think it is only the “association” with illegal porn downloads, but the abusive methods employed by the Trolls against ALL the ISP subscribers/Does. 

The Order Requires The Following

  • Prior to release of the ISP subscriber information to Plaintiff, any motions filed by a Doe has to have the Doe # or IP address listed.
  • Plaintiff shall only use the ISP subscriber information to “protecting and enforcing” Plaintiff rights as stated in the complaint.
  • Plaintiff is required to advise the ISP subscriber the following when they contact is made (Doe initiated or Troll initiated).

… John Doe defendant has the right to obtain legal counsel to represent him or her in this matter and that anything said or provided by the John Doe can and likely will be used against him or her in these proceedings.

  • Any John Doe who doesn’t wish to be contacted by Plaintiff may at any time inform Plaintiff/Troll by letter, telephone, or email (copyright@lebfirm.com) the following – Please do not contact me (again) prior to serving me in this matter.”
  • Plaintiff is required to inform the Doe (or his attorney) of its intent to name and serve the Doe at least 14 days prior to making the request from the court for the summons to be issued.
  • Plaintiff/Troll must inform the Doe that if the they (Plaintiff/Troll) incorrectly “name” the ISP subscriber as the defendant in a case (i.e. true name – Malibu Media LLC, v. Mark Jones), then Plaintiff/Troll could be subject to sanctions IAW FRCP Rule 11.
  • Plaintiff/Troll must provide a copy of this order to each John Doe.
  • Plaintiff/Troll is required to inform each Doe that they MAY submit written or electronic objection to Plaintiff/Troll.  If an objection is sent, the Doe MUST either state who is responsible for the alleged infringement OR provide some exculpatory evidence if the person responsible is unknown.  Plaintiff/Troll must then try to file the object under seal with the court, along with their response to the Doe objection.  The court will then determine if there is enough evidence to proceed with a case against the Doe defendant.  Plaintiff/Troll is prohibited from actually naming the Doe in a suit until the court make this determination.  If the Doe does not file an objection, the Plaintiff/Troll can name and serve the Doe defendant. 

What Should You Do? 

I dont’ know anything about Judge Wilson, but I must say I like this order better than the free-for-all the Trolls have been enjoying since this started in 2010.  I will warn the Does affected in this case that such a 5th Amendment like advisement is a dual-edged sword.  It can protect you, but it can also cut you.  There is nothing more a Troll would love to tell the court than that they advise John Doe of his rights and he/she voluntarily waived them and admitted everything. 

I did like the part that a Doe can tell the Troll to not contact them until they move forward with naming and serving a summons.  Here is where the Richard Pryor Response (RPR) comes into Play.

      • 1) I didn’t do it
      • 2) The movie is not on my system
      • 3) I will fight you in court
      • 4) Have a nice day and don’t call back

I believe the best course of action for these Does is to give the RPR and wait.  Plaintiff/Troll then has to make a decision on what to do.  If they mess up and name an ISP subscriber as a defendant with only their weak evidence (Public IP address), they may be subject to sanctions IAW FRCP Rule 11.  As this Plaintiff’s counsel in NY stated that approx. 30% of the ISP subscribers are not the actual infringers, the ground work has been laid. 

I would caution most Does that if they feel the need to respond to the Troll allegation, that they only do it through an attorney.  The good thing with responding through an attorney is the attorney will be better able to formulate a response to get Judge Wilson to possibly prevent the Troll from naming you. 

Obtaining exculpatory evidence in these cases will be hard, as most small office/home Firewall/Routers don’t log anything of value.  On most of these cases the time frame to record such data is long past and since most of the Plaintiffs don’t issue DMCA takedown notices, they have prevented you from even trying to collect that information.  Other issues of malware infections on your systems or that the Internet Access point was run “Open” may be of value.   

This will be interesting to see if this order is picked up by any other FL judges or spreads to other jurisdictions.

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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14 Responses to FL Judge Requires 5th Amendment Like Advisement To Doe Defendants, 8:12-cv-01419, Malibu Media LLC, v. John Does 1-18

  1. I just screamed, “Hallelujah!” when I read this opinion. Finally here is a judge that is willing to sit down with the copyright troll and lay down a set of rules for him to navigate (if the troll really intends to go after the defendant). I like the sanctions if a troll accidentally names an innocent defendant. Also, any kind of notice that tells a defendant to call ANYONE OTHER THAN THE COPYRIGHT TROLL’S LAWYER can only be a good thing.

    There is a lot that needs to be done to publicize this opinion so that other judges adopt this ruling. On a personal note, I am happy that we will actually be fighting these cases rather than the “go ahead, name my client — I dare you” posturing that I find happens too often.

  2. Umm… Did Judge Wilson just suggest that ISPs fall under the CABLE ACT (47 U.S.C. 522 and 551)? (see Doc 14, p.5 of 7) [http://wp.me/pZjib-ml for details on the issue, and then come back here to DTD’s site and comment.] So now we have 1) DC Judge Facciola assuming arguendo that it applies, and now 2) FL Judge Wilson suggesting that “ISPs…qualify as a “cable operator.”

  3. Pingback: New Florida Rule: ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT. « Federal Computer Crimes

  4. This is not the first time that a judge in the Middle District of Florida has required Malibu Media to provide a 5th Amendment-like advisement to non-represented Doe defendants. In response to Tamaroff & Tamaroff’s Motion for a Protective Order in Malibu Media v. Does 1-9, 8:12-669-SDM-AEP (M.D. Fla), Magistrate Judge Porcelli required that “Plaintiff shall immediately inform each John Doe Defendant who contacts Plaintiff or whom Plaintiff contacts that said John Doe Defendant has the right to obtain legal counsel to represent hi or her in this matter and that anything said or provided by the John Doe Defendant can and likely will be used against him or her in this proceeding.” Id., Order [Doc. No. 25] at 9.

  5. The Tod says:

    Finally the fair and correct path.

  6. Pingback: New Florida Rule: ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT. « The Houston Lawyer Blog

  7. Pingback: Federal Computer Crimes (CyberLawy3r)

  8. Pingback: New Florida Rule: ISPs WHO ARE ALSO CABLE OPERATORS ARE BOUND BY THE CABLE ACT. « Federal Computer Crimes (CyberLawy3r)

  9. Pingback: Court's Patience With Bittorrent Litigation Wearing Thin | Copyright Attorney

  10. Raul says:

    When I first saw this order I was a bit conflicted about it. On balance it is a major step forward but I question the use of a troll as the intermediary between the Doe exculpatory info and the court. A better method would have been for the Doe to file the objection with both the court and serve the troll IMHO. Ultimately it would be a further improvement if a judge were to fashion a simple form a Doe could fill in if the Doe is in possession of exculpatory evidence/explanation.

    I also did not like the part of the order that seems to invite a Doe to rat out a family member, friend, roommate, etc.

    • DieTrollDie says:

      Yes, not the most ideal for the Does, but I still think it is an improvement over the Troll free for all.

      IMO, this order is great for Pro Se defendants and Copyright Defense Lawyers to cite in their motions. By signing this order, Judge Wilson essentially states that the Plaintiffs in these matters cannot be trusted to use sound judgment in determining who they name and serve. The judge has prohibited Lipscomb from naming and serving defendant who provide exculpatory evidence. The judge knows the public IP address is weak and there are many reasons why the ISP subscriber isn’t the infringer. He also knows Plaintiff cannot be trusted to do the right thing. I don’t know of any other type of case where Plaintiff and their attorneys are not allowed to determine who they will name and serve summons/complaints on. The judge also feels the need to remind Plaintiff/Troll (and each Doe) that sanctions are a possibility if you name the wrong person due to your weak evidence.

      So what types of exculpatory are possible?

      1) Ran the Internet connection “open” and didn’t know of the infringing activity. Have since closed the connection or MAC filtered systems allowed on the network.
      2) Didn’t know the Internet connection was “Open” or of the infringing activity. Have since closed the connection or MAC filtered the systems allowed on the network.
      3) Never received any DMCA take-down notices from Plaintiff for the alleged period of infringing activity. Didn’t know it was happening and when I found out I checked my WiFi Firewall/Router (WFR) for logs. No logs were available because of the late notice from Plaintiff.
      4) Checked the logs on the WFR and identified unknown systems were using my Internet connection. I have screenshots of the unknown systems as well as notes detailing what I found.
      5) Check all the system in my residence and no BitTorrent software was installed on them.
      6) Check all the system in my residence and none of Plaintiff’s movies were found on them.
      7) Checked my systems in my residence and no torrent files (i.e. “Midget_Tranny_GB_vol7.torrent”) were found on them.
      8) During the alleged date of the infringement, my systems was infected by malware and had to be rebuilt by “Geek Squad.” Have notes and receipt for payment for any such work.
      9) You had a lengthy power outage or something else that reset your WFR to its default configuration and default administrative password prior to the infringement date.
      10) Unknown who may have used your Internet connection. As you had WiFi Protected Set-Up (WPS) enabled, your WFR may have be exploited and Internet access abused by unknown personnel. http://www.us-cert.gov/cas/techalerts/TA12-006A.html https://docs.google.com/spreadsheet/ccc?key=0Ags-JmeLMFP2dFp2dkhJZGIxTTFkdFpEUDNSSHZEN3c#gid=0
      11) Hard drive crashed (or WFR) during the period of alleged infringement. As it happened months before you were notified by Plaintiff, it was disposed of. If you still have the old HD or WFR, do not throw it away.

      So many possible exculpatory reasons out there.

      DieTrollDie 🙂

  11. Subscribe says:

    Subscrive

  12. AA says:

    Hey Guys,
    So from my understanding just sit and wait. If someone calls you say nothing.
    is there anything I need to do or to be aware of? It is frightening to tell the truth!
    Please I need an advise.
    Thank you

  13. Pingback: Lipscomb Fishing Co., or “Exculpatory Evidence Request” | DieTrollDie

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