Prenda’s spiritual heir, Keith Lipscomb, seemingly didn’t learn the lesson. While he didn’t sue any provider (yet?), his more and more burdensome demands started to irritate the bear. In a closely watched case Malibu Media v. John Doe (NYSD 14-cv-10155), Lipscomb, after failing to find any traces of XArt’s smut on the defendant’s computer and after not succeeding in blackmailing the defendant during a deposition, invoked Plan B. Such a plan is usually two-fold. The main part is moving for sanctions claiming massive spoliation of evidence¹. The other part is trying to learn everything the defendant’s ISP knows about its subscriber in a hope to find anything incriminating.

The second part was materialized on 9/9/2015 as a motion for entry of an order authorizing plaintiff to serve a third party subpoena on Verizon and authorizing Verizon to release certain subscriber information about defendant. Judge Forrest granted this motion on 9/11 — with a caveat: while she signed Malibu’s proposed order, she added a handwritten note that Verizon might choose to object per 47 U.S.C.A §551 — Protection of subscriber privacy.

And Verizon, by its biglaw attorneys Morrison & Foerster, did object.



First, a visibly annoyed provider stated that the subpoena is burdensome:

The subpoena was issued from this district but served in Texas and purports to command the appearance of Verizon’s representatives — who reside in or near Arlington, Virginia — to testify on six days’ notice in Texas, i.e., outside the 100-mile radius for commanding testimony of a witness.

…adding in a footnote that

Verizon’s website states that, for efficient processing, subpoenas should be served on Verizon’s subpoena processing unit in Texas. Malibu Media’s outside general counsel, Keith Lipscomb is aware, based on his many contacts with Verizon, that Verizon’s employees are located in Virginia.

Second, Verizon’s attorneys argued that in any case the information sought is prohibited by the Cable Act (emphasis is mine):

The Cable Act sets forth limited circumstances in which cable providers can provide information to governmental entities or in response to court order: Except as provided in paragraph (2), a cable operator shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned and shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the subscriber or cable operator.

47 U.S.C. § 551(c)(1) (“Disclosure of personally identifiable information”). Subparagraph (c)(2) of the Act, referenced in the quotation above, provides only limited exceptions for broader disclosures by cable operators. The Act permits disclosure pursuant to a court order only if “the disclosure does not reveal, directly or indirectly, the — (I) extent of any viewing or other use by the subscriber of a cable service or other service provided by the cable operator, or (II) the nature of any transaction made by the subscriber over the cable system of the cable operator ….” 47 U.S.C. § 551(c)(2)(C)(ii) (emphasis added). This is precisely the information Malibu Media seeks from Verizon. The information is not discoverable and an extension of the discovery cut-off to pursue it should not be permitted.

This ISP’s reluctance to play along with Lipscomb in his fishing expedition is a refresher. It was heartwarming to read the preface that briefly described the troll’s MO — this preface even included Judge Wright’s famous “essentially an extortion scheme” quote.

The critical gear of the well-oiled extortion machine is the relationship between the troll and ISPs. We see a small crack in this gear, and I really hope this crack will grow over time.

Coverage

Followup

Updates

10/6/2015

The judge issued an order today (emphasis is original):

The Court has construed Verizon’s letter as a motion to quash the subpoena and notes that, because Verizon’s letter raises a discovery dispute, plaintiff was required to respond not later than October 5, 2015, per this Court’s Individual Rules. Plaintiff has failed to do so. The Court hereby gives notice that it will deem Verizon’s motion to quash to be unopposed and grant that motion (and deny plaintiff’s related motion to extend discovery), unless it receives a response from plaintiff within 24 hours of the filing of this Order.

10/7/2015

So, instead of giving up and switching to dealing only with providers that are more eager to sell their customers to copyright trolls (I’m looking at you, Comcast!), Lipscomb decided to double down and oppose Verizon’s motion to quash. This will end well, I’m sure.

In its opposition, Malibu claims that since the requested information was not about defendant’s cable TV viewing, but his Internet usage only, the Cable Act doesn’t apply. I’m not kidding.

Verizon’s attempt to quash the subpoena on the basis of Plaintiff’s litigation in other cases, or through ad hominem attacks, lacks merit and should not be considered. Plaintiff is only using the court system to litigate its case under the proper purposes granted through the Copyright Act. Plaintiff has engaged in discovery in good faith and its only goal is to seek redress for its injuries. For the foregoing reasons, Plaintiff respectfully requests the Court grant its Motion to Extend Discovery and deny Verizon’s Motion to Quash.

The trolls must be happy that this was a letter rather than an oral testimony. Otherwise how could they hide their foot-long noses from the judge?

10/9/2015

Today the judge quickly ruled on the MTQ — without giving Verizon an opportunity to reply. She found Verizon’s claims of burdensomeness unconvincing and granted the MTQ in part and denied in part, ordering Verizon to produce requested documents because

The documents required to be produced herein do not fall within any prohibition of the cable act.

However, the judge didn’t allow depositions at this time:

No deposition is required at this time though, if this matter were to proceed to to trial and no stipulation was reached between the litigants, one might be necessary then.

The troll was gleeful (this tweet was hastily deleted, but I made a screenshot):

I hope that Verizon won’t back down easily.

¹ The motion for sanctions accompanied by a very suspicious forensic report is a separate story to be told, and I’ll get back to it in coming days.