Recently a defense filing in the Southern District of Indiana (case 1:12-cv-00845, Malibu Media LLC v. 29 Defendants (some named)), was brought to my attention (Thanks Raul!). The filing was a Reply In Support of Motion to Require Plaintiff to Post a Bond for Costs and Expenses. ReplyBond_MM_00845(IN) Case Docket
It is a well written reply by Paul B. Overhauser. It is well worth reading and makes great use of documents and statements by Plaintiff (Malibu Media/Colette Field) to show why Plaintiff should be required to post a $500K bond to proceed with the case. I don’t know if they will get that amount, but I would expect some sort of bond to be approved by the court based on this filing.
The part in this filing that caught my eye was section “C. Malibu Fails to Consider Utilization Of DCMA Take Down Notices” (page 4). DMCA is the Digital Millennium Copyright Act of 1998. This a point I have repeatedly mentioned as being highly indicative that Plaintiffs and Copyright Trolls are not taking the reasonable steps to try to stop copyright infringement. The reason I believe they do not use this simple legal measure is that it would negatively impact their business model of generating settlements on a repeatable basis. Here is what Mr. Overhauser had to tell the court.
At PgID 1241, Malibu claims that its porn movies are being copied on the Internet, stating, “Plaintiff has no other way to make the infringement stop and seek recourse for its losses than to bring a suit like the one before this court.” (sic) Malibu does not cite authority for the Proposition that the availability of alternate remedies is a factor that should be considered in requiring a Plaintiff to post bond. However, it is wrong in asserting that it has no other remedies.
Since 1998 the Copyright Act has provided a regime to “make the infringement stop,” and it is what all the major movie studios use. When an Internet site is believed to be hosting infringing content, a copyright owner may simply issue a “DCMA Take Down Notice” to the Internet Service Provider or hosting company pursuant to 17 USC §512. This does not require a lawsuit or subpoena, and is far more efficient than hiring an army of lawyers to file 866 separate lawsuits across the country.
In the PA Bellwether trial, Colette Field, Malibu Media (X-Art), stated they DO send DMCA take-down notices to the Internet Search Engines (i.e Google, Bing, etc.) to remove links to sites that host or supply BitTorrent links Plaintiff’s movies. What Malibu Media DOES NOT do is send DMCA take-down notices to the Interne t Service Providers (ISP), who are the registered owners for the public IP address recorded by IPP Limited during their technical monitoring. So it appears Malibu Media will use the DMCA take-down notices, so there must be some benefit to them.
A key provision of the DMCA is a “safe harbor” provision to protect various types of service providers (Web hosts, Caching services, ISPs, Internet Search Engines) from liability, as long as they meet certain requirements and follow the rules. Without the “safe harbor” provision, Internet search engines, ISPs, and sites like YouTube would be too risky to run from a legal liability stand point.
How Does This Apply To The ISPs And BitTorrent Copyright Infringement Cases?
After a Plaintiff identifies what public IP addresses are allegedly downloading/sharing their content, they do a “Who Is” look-up (example http://whois.domaintools.com/) to determine who is the registered owner of the IP address, as well as the general physical location of it. They sort the results by State and Federal court jurisdiction and by the ISPs (i.e. Comcast, Cox Communications, etc.) who is the owner.
The Troll knows the ISP has subscribers who pay a monthly fee for Internet access and are issued a public IP address from their net-block (available IP addresses). The troll then opens up a Federal Copyright Infringement case and asks the court to issue a subpoena to obtain the contact information for the ISP subscriber who was issued the public IP address their technical monitoring identified as being the infringer.
The DMCA clearly states the safe harbor provisions only protects the ISPs if they take steps to remove the offending media. As an alleged BitTorrent client is using the identified public IP address to download/share the protected media, the DMCA take-down notice applies here. The offending media is hosted by the ISP via the ISP subscriber.
Now the ISPs are in this business to make money. By ignoring DMCA take-down notices they open themselves up to possible legal actions (copyright infringement – up to $150K damages, etc.) for each instances they do not comply with the rules. That is why so many Web sites and ISPs have such a knee-jerk reaction to DMCA take-down notices sent to them. Once an ISP gets a notice, they are required to first make sure it is a complete notice and then either remove it or disable access to the infringing work. For BitTorrent Copyright Infringement claims, this usually just means the ISP forwards the notice to the subscriber along with a reminder of the acceptable policy they signed and a warning that they need to stop this activity. The ISPs could suspend Internet access of the account, but I have only heard of this in the very worst cases. As most of the Trolls do not send out the notices, the ISPs are not held responsible for policing their users.
The use of the DMCA take-down notices would be such an easy task to make the ISPs enforce their acceptable use policy with subscribers and truly act as a deterrent to online copyright infringement. If an ISP subscriber ignores the notices and the activity continues, the Plaintiff is going to have the ISP records to show this in any legal proceedings. Copyright Troll Lipscomb (my opinion) has deposed Does and asked them if they received DMCA notices in the past – so such information is clearly of value to their cases. If the activity continues, the ISP can suspend Internet access and thus stops the continued copyright infringement. Even if it is determined an ISP subscribers Internet Access was hacked, the service suspension would stop the infringement and force a securing of the device/network. Yes, having a suspension of service would suck for the user, but it would stop the activity. This goes to show that the DMCA take-down notices can work. No, they are not perfect – but at least the Plaintiff would be trying to use the available legal measures to minimize the infringement.
I hope other attorneys use this line of thought in their pleadings. I don’t think it will stop the copyright trolls, but it could actually have a preventive effect – in terms of reducing copyright infringement and copyright trolling as a business model.