When a porn copyright shakedown factory Malibu Media / X-Art resumed its operations in New York after a two-year hiatus , it raised many brows because this state has proven to be very hostile to copyright trolls in the past: to my understanding, in 2012 New York Southern and Eastern districts amassed the largest number of court rulings scolding trolls one way or another.

Astonishingly, this time the troll lawyers (Lipscomb, Eisenberg and Baker, via a local Jacqueline M. James) managed to stay afloat and fleece New York citizens for almost a year, with very few setbacks. To date, Malibu Media filed 253 cases (NYSD: 200, NYED: 53).

This may change after today’s Order and Opinion issued by a district judge Alvin K. Hellerstein in Malibu Media v. John Doe (NYSD 15-cv-04369). Malibu’s motion for ex parte early discovery was denied, thus the case was effectively dismissed.

This order was built upon findings and opinions by other judges, and it is both significant and unique because of the number of citations from troll-busting New York, Wisconsin and Ohio rulings.



Citing a wide known “Copyright Trolling, An Empirical Study” by a Chicago law professor Matthew Sag, the judge started with describing the trolls’ modus operandi:

Recent empirical studies show that the field of copyright litigation is increasingly being overtaken by “copyright trolls,” roughly defined as plaintiffs who are “more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service.”

Quoting last month’s OSC by an OHSD Judge Timothy Black, Judge Hellerstein effectively called Malibu “copyright troll,” despite Lipscomb’s comical effort to deny the obvious.

And after stating that

In 2012, judges in the Southern District and across the country began awakening to the danger of copyright trolls, especially in the context of pornography,

Judge Hellerstein continued with the most damning quotes from orders by judges Marrero, McMahon, Baer, Brown, Fox, Black, Oetken, Conley, Randa and others. Again, I never saw an order based on such a thorough research. (We covered the majority of the cases cited in this order — follow the links in the previous sentence.)

In denying Malibu’s motion for ex parte discovery, the judge analyzed the factors allowing this type of exceptional relief, and in the judge’s opinion, none of these factors were favorable to Malibu: a nice reminder that the phrases “ex parte discovery” and “rubber stamp” are spelled differently.

Citing Judges Marrero and Oetken, Judge Hellerstein time and again reiterated the simple fact that an IP address is not equal to a person, thus concluding that Malibu didn’t show a prima facie claim:

[t]he fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer. Indeed, the true infringer could just as easily be a third party who had access to the internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business offering internet connection.

Moreover,

And even if Plaintiff could definitively trace the BitTorrent activity in question to the IP-registrant, Malibu conspicuously fails to present any evidence that John Doe either uploaded, downloaded, or even possessed a complete copyrighted video file.

Finally, Plaintiffs assertion that there is no alternative means of obtaining the desired information is inadequate. The only support for it comes from the declaration of Patrick Paige who, as Magistrate Judge Fox found in a different case, lacks personal knowledge of the methodology used by ISPs to match the IP address with its registrant. […] The Paige declaration that Judge Fox found deficient nearly three months ago is identical to the Paige declaration submitted in support of this motion. It fares no better this time.

The judge didn’t forget about the most egregious troll’s conduct, specifically:

When courts have attempted to place restrictions on the subpoena to prevent Malibu from abusing the process to extort defendants, Malibu has flagrantly disregarded them. For example, after one court issued “two orders unambiguously ordering [Malibu] to file [the identified IP-registrant’s name] under seal,” Malibu filed it publicly anyway. […]. And in the Eastern District of New York, Magistrate Judge Gary Brown took additional precautions to protect John Doe’s identity by explicitly instructing that “the subpoenaed information be sent directly to the Court, ex parte and under seal.” Patrick Collins, Inc. v. Doe 1 […]. Malibu instead served subpoenas that requested the identifying information be sent directly to Plaintiffs counsel.

The conclusion was devastating to the plaintiff (emphasis is mine):

In light of Malibu’s history of abuse of court process and its failure to show “good cause,” I decline to give it the benefit of an exception to the normal rules of discovery. Plaintiff’s motion for leave to serve a subpoena on Time Warner Cable is denied. The case will proceed in normal fashion.

I really hope that other New York Judges will adopt this extremely well-researched opinion and oust the abuser from their state, this time for good:

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