It is hard to keep up with the various copyright troll cases out there. One case that needs an update is Malibu Media v. Michael Harrison, SDIN, 1:12-cv-01117. Here is the previous reporting on this case. Docket
This case was originally opened on 14 Aug 2012, and had 11 Doe defendants. Over time Malibu Media was able to get seven of the defendant to settle and even obtained a default judgment ($20K) against another defendant. The remaining defendant (Harrison) is represented by Gabriel J. Quearry, QUEARRY LAW, LLC. Mr. Quearry and Harrison have been taking the fight to Malibu Media and not making it easy for them.
Since my last posting, a few interesting things have happened. On 2 Oct 13, Troll Nicoletti, motioned the court to amend the Third Amended Complaint (TAC). MTA_Doc130_01117(IN) This motion was filed more than 30 after the court established dead-line (30 Aug 13 – Paragraph H of the Scheduling Order) for filing motions requesting permission to amend the pleadings and add new parties. Nicoletti claimed that they had good cause to do this after the dead-line, because the information they wished to change (5 additional claims of copyright infringement against Harrison) was not available until recently brought to their attention via the discovery process.
On 16 Oct 13, Mr. Quearry filed an Opposition to Plaintiff amending its TAC. Harrison_Doc134_01117(IN) Mr. Quearry points out that Plaintiff is clearly trying to mislead the court concerning when they really found out about these additional five claims. Mr. Quearry then uses IPP Internationals technical monitoring document to show that Plaintiff’s investigator was aware of this information during the first part of June 2012 (over a year ago), and provided Plaintiff with this information far in advance of the 30 Aug 13, deadline. Even if they made a simple mistake, that does not justify a “good cause” to amend the complaint.
Failure to Pursue Contributory Infringement Claim
Harrison has also asked the court to dismiss the contributory copyright infringement claim because Plaintiff has decided not to pursue it and none of their supporting documents lays any basis for contributory infringement of the copyrighted work, or that Mr. Harrison acted in concert with any other Defendant in this action.
One Satisfaction Rule
The part of Harrison’s opposition I really liked was the claim that Plaintiff is only allowed one single statutory damages award in this cases, as all the defendants were jointly and severally liable per the complaints. I previously wrote that Plaintiff was going to have fun with this aspect of the copyright law, as (1) all the defendants were accused of downloading/sharing the same movie with the same SHA-1 hash file; (2) a default judgment of statutory damages was issued against defendant Robert Johnson ($20K); and (3) settlement had been paid to Plaintiff from seven defendants in this case.
As discussed above, Plaintiff is precluded from recovering multiple statutory damage awards under 17 U.S.C. 504(c)(1) on a “per defendant” basis. Plaintiff is only permitted to elect, at any time before final judgment is rendered, to recover a single statutory damage award under 17 U.S.C. 504(c)(1) on a “per infringed work” basis. Before a final judgment was rendered in this action, Plaintiff elected to recover, instead of actual damages and profits, an award of statutory damages in the amount of $20,000 for all infringements involved in the action, with respect to the single work, “Pretty Back Door Baby.” This Court specifically found that the $20,000 damages amount Plaintiff elected to receive was just under the circumstances.
Furthermore, Plaintiff has alleged in each of its Complaints that each joined Defendant is jointly and severally for all infringements with respect to the single copyrighted work, “Pretty Back Door Baby.” Plaintiff is entitled to recover its single $20,000 statutory damages award, which this Court considered just, from each joint and severally liable Defendant in this action.
However, even if Plaintiff established Harrison’s liability in addition to Defendant Robert Johnson’s liability, both Defendants would be entitled to a setoff from amounts Plaintiff has already recovered from settling Defendants in this action under federal common law. If at this time the sum total amount Plaintiff has recovered from the settling Defendants is in excess of the single $20,000 statutory award Plaintiff is limited to recovering in this action, then Plaintiff cannot recover anything from Harrison or Defendant Robert Johnson because of the “One Satisfaction” Rule.
Malibu Media Responds
On 31 Oct 13, Troll Nicoletti responded to Mr. Harrison’s opposition. MMReply_Doc139_01117(IN) The first reason given why the Mr. Harrison’s opposition should be denied is because it should have been filed as three separate motions (motion to dismiss, motion for the Court to adjudicate the issue of statutory damages, & motion to require Plaintiff to disclose the total amount it has recovered in settlement amounts) and not as one. The second reason is because Mr. Harrison has not put forth any valid argument to support his request to dismiss Plaintiff’s contributory infringement claim on the basis for failure to litigate. The third reason is because Plaintiff has not been given the opportunity plead the statutory damages claim yet. Finally, Plaintiff claims that allowing them to amend the TAC will aid judicial efficiency and to avoid having to litigate a near identical cases with the same parties and issues.
One interesting bit in Plaintiff’s reply is found on page 3 (Part B), where they claim to have found torrent files on defendant Harrison’s computer (my emphasis).
Further, Plaintiff has demonstrated good cause because, as set forth in its motion, its litigation strategy has changed throughout the course of discovery and it is in the best interests of the parties to allow Plaintiff to amend its Complaint to reflect its trial strategy. Notably, Plaintiff found torrent files on Defendant’s computer. And, these files are similar to other files that were downloaded near the time of infringement of Plaintiff’s movies. As stated in its motion, Plaintiff intends to use the other infringements of its movies as evidence. Here, in the interests of judicial efficiency, it is logical to include the claims for infringement in this action since Plaintiff will be introducing the evidence to prove these claims.
The One Satisfaction Rule is of interest to me, as I see it possibly having a greater impact to on Malibu Media cases in the long run. The advantage Malibu Media/Troll Lipscomb has in the single Doe cases is it is hard to find out which movies/SHA-1 hash files they are using on each case. I will make a gentleman’s wager that they will not/have not informed any court or defendant of which cases (multi-jurisdictions) are associated based off the same SHA-1 hash file OR when a default judgment is issued and which SHA-1 hash file(s) does it impact. I don’t buy Troll Nicolett/Lipscomb’s view that the One Satisfaction Rule does not apply. Simply reading the law makes it VERY clear that it does apply. Now even if the court does agree that the issue of the One Satisfaction Rule is premature at this point, it will have to be addressed if Mr. Harrison is found by the court to have infringed Plaintiff’s works. Then the issue of how much did the seven other defendants pay Plaintiff will come out. If that total exceeds $20K, then Mr. Harrison may only be liable for attorney’s fees and costs. It will also set a precedent that will haunt Malibu Media for the foreseeable future. Based off of the settlements already received and the $20K default judgment, it is in Malibu Media’s best interest to try to settle this with Mr. Harrison as quietly as possible. This will be interesting to watch.
As far as the new claim that they “found” torrent files on defendant’s computer, I would love to see the report from the forensic consultant. I assume it will be from the same consultant used in the PA
Bellwether Bench trial. According to Mr. Quearry, Plaintiff has been in possession of a copy of Mr. Harrison’s hard drives since 26 Jul 13. Three months is a very long time to spend on a forensic analysis of such a simple case; that is unless they are having trouble finding any evidence to support their claims. If that is the case, I expect the forensic consultant is digging deep in the unallocated space of the hard drives, trying to find anything to support the claims.
Notably, Plaintiff found torrent files on Defendant’s computer. And, these files are similar to other files that were downloaded near the time of infringement of Plaintiff’s movies.
Without seeing the exact data the forensic consultant is talking about, it is hard to give some insight. Is these bits and pieces of what looks to be torrent files or just parts of past Internet searches recovered from the Free and Slack space on the hard drives? Were the hard drives originally used in another computer prior to Mr. Harrison’s use of them??? So many questions and no answers. They claim that the torrent files found were “similar” to “other” files downloaded “near” the time of infringement. Based off this, I believe they may be referring to files that are similar to files in “Exhibit C” like document – detailing other non-Malibu Media files being shared via BitTorrent from defendants public IP address. If Mr. Harrison’s answer states that no one in the residence ever used BitTorrent, then there needs to be some explanation given as to the torrent files allegedly found.
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