The Bellwether Trial (Malibu Media v. Does) – What Have We Learned? My Five Takeaways From the Trial

Flag_of_Edward_EnglandThis week Marc Randazza and I had the pleasure of trying the first ever bittorrent case to reach a verdict. Many thanks to my trial co-counsel, Leonard J. French and Ron Smith. Credit is also due to Charles Thomas and Thad Gelsinger, whose clients settled before trial. Finally, kudos to Malibu Media’s counsel, Keith Lipscomb and Chris Fiore, who demonstrated that they are exceptional litigators and trial lawyers. It was a hard fought battle among worthy adversaries.

If you are interested, you can listen to the Bellwether Trial in its entirety here:

Part 1 – Trial Audio (IPP Limited, Patrick Paige, court appointed expert Louis Cinquanto)

Part 2 – Trial Audio (John Doe Defendants, Judge Baylson’s final rulings)

(I can’t figure out how to embed it.)

So… what is this all about?

Last October, Judge Baylson ordered Malibu Media to take a bittorrent case to trial. Some had concerns that a bittorrent case could never be tried successfully in court.

That proved to be wrong… on June 10, 2013, Malibu Media tried three John Does accused of copyright infringement to a verdict.

A $112,500 verdict was entered against John Doe 16, in addition to attorney’s fees and costs. The judgment will be close to $500,000 once costs and attorney’s fees are entered.

No money damages were entered against Doe 1 and Doe 13 because they settled before trial to avoid an entry of a damage award.

Doe 16 was accused, and ultimately found guilty of, very serious perjury. In discovery he turned over a hard drive that had been wiped clean, with evidence planted on it to look as though it were operational. Malibu proved that Doe 16’s hard drive had been wiped, and that evidence had been planted on it. Doe 16 later admitted his wrongdoing and confessed after the court appointed its own expert. (it is a lot more complex than that, but you get the gist).

Doe 1 denied downloading the movies in a civil deposition, but later recanted.

Doe 13 never denied infringing on the copyrighted material, but made legal arguments as to why he should not be held liable. The court said Doe 13 had a legal right to do that.

At the end of the trial, the court rejected the legal arguments and found in favor of Malibu Media.

Now that the trial is over, there are many things we can take away from the Bellwether Trial for lawyers, Doe Defendants, and people who are generally interested in copyright law. These are a few things I thought were notable:

1. Porn is copyrightable.

Judge Baylson unequivocally held that porn is copyrightable, even if some people may find it offensive or distasteful. (just like they may find this blog). According to the court:

“It is clear … that, the copyright laws are content neutral. And, there is no distinction between sexually explicit material and a work that is purely in print … as far as the copyright laws are concerned. It’s a work created by an individual and it’s subject to the copyright. It doesn’t matter what the content is. So pornography and adult films are not everyone’s taste, but I cannot as a judge neglect the fact that the copyright laws are content neutral, or have any prejudice or distinction based on the content of the work product of Malibu Media.”

Porn is copyrightable. Period.

2. Not everything you read on the internet about bittorrent lawsuits are true: Malibu Media has reliable evidence, people  do pirate stuff off the internet (at an alarming rate), and bittorrent cases can absolutely be proven in a court of law. 

While it’s fun to read about the little old lady who gets hit with a bittorrent lawsuit, many, many people are actually pirating stuff. For every grandpa who is blind and never seen porn in his life, there are millions upon millions of people everyday who choose to pirate copyrighted material off of bittorrent. IPP Limited’s testimony about the amount of copyrighted material being pirated is staggering.

The evidence to catch infringers is reliable, too. At trial, two witnesses from IPP Limited testified about how their software works. Their testimony was corroborated by an expert witness, Patrick Paige. Paige legally downloaded a movie which was assigned a hash value. He then put it in a bittorrent swarm, which IPP Limited was able to trace back to his IP address.

All of the Does (eventually) admitted that the evidence is reliable, too.

So, if you have been targeted in a bittorrent lawsuit, there is an exceptionally high chance that the material was infringed on using your internet.

3. “But… an IP address is not a person!” has never been a good argument in court, and it never will be. 

Imagine this: Saturday night around 11:00pm, a drunk driver sideswipes a pedestrian. The pedestrian is hurt pretty badly. A witness catches the license plate of the car, but not much else. Naturally, the pedestrian sues the drunk driver in  “Hurt Pedestrian v. John Doe.”

John Doe, the owner of the car, shows up to court and says: “A license plate isn’t a person!! This lawsuit should be thrown out!!! This is outrageous!!!”

Does the lawsuit get thrown out?

No.

The plaintiff deposes John Doe. The lawyer asks who had John Doe’s car on Saturday night around 11:00pm. It turns out Doe’s son was driving it. The plaintiff turns around and sues Doe’s son (along with John Doe for negligent entrustment of the car.)

That is how the law works in a personal injury suit, and in a copyright bittorrent suit. I know you don’t want to hear that, but it’s the truth.

Even though an IP address isn’t a person, evidence that infringement occurred via that IP address is enough to get into court.

In the same vein, if you want to claim wi-fi hacking, or something similar, you need to have actual evidence for it. It’s not enough in a civil trial to say “My wi-fi could have been hacked, so the lawsuit has to be thrown out!” If that is the case, you need to show a jury evidence that your wi-fi was indeed hacked. Otherwise, testimony that your wi-fi could have been hacked is speculation and non-admissible.

4. Civil litigation is different than criminal defense. There are no secrets or surprises in civil litigation. You are not permitted to lie in a deposition or in court hearings. That is illegal. 

“I didn’t do it! I have no idea what you’re talking about! I would never download porn!” (And even if I did do it, you could never catch me! I would just delete the evidence anyway! HA HA HA!)

If you know there is a lawsuit filed against you, and you destroy evidence, it is called tampering with evidence. If you tamper with evidence, and then lie about it under oath, that is called “perjury.” Both of these things are a crime.

Unlike a criminal case, in a civil case a plaintiff can depose you and ask you straight up – “Did you download the content?”

That testimony is under oath. If you lie, it’s perjury. The plaintiff can also search hard drives, depose neighbors, and test theories about wifi hacking.

Based on perjured testimony, Doe 16 had a six figure verdict entered against him, which will be close to $500,000.00 once you add in attorney’s fees and costs. And Doe 16 only downloaded 5 movies. Willful copyright infringement is not dischargeable in bankruptcy, either.

5. Many purported “bittorrent defense lawyers” get their information from the internet. It’s wrong, and they are morons.

“Oh, don’t worry, they could never prove their case! Just delete the stuff off your hard drive and offer them $75. They would never taken one of these cases to trial, and it would be impossible for them to do that anyway.”

“We’ll just file a motion to sever or to quash! As soon as you litigate these cases the plaintiffs run away and find new targets. They’ll never pursue you if you fight back.”

I’ve heard it everywhere. Usually from morons.

Lawyers – if intellectual property litigation is not your forte, I would urge you not to take on one of these cases. Civil litigation is entirely different than criminal cases. There are no secrets in discovery, and a plaintiff needs only to prove their case by preponderance of the evidence. This means if it is more likely than not that the defendant is the infringer, there could be massive penalties.

I know you’re not going to want to hear this, but if you downloaded a copyrighted work off of bittorrent and got caught, you should probably consider a settlement very seriously.

And yeah, you’re probably familiar with Judge Wright’s epic Star Trek Order. But here is the thing – not everyone that pursues a copyright claim against Doe defendants for copyright infringement is Prenda. Having now personally litigated a case from start to finish with Malibu Media, Keith Lipscomb, and Chris Fiore, you have my assurance that these guys are very good trial lawyers, and they can absolutely prove a meritorious bittorrent case at trial.

Where does this leave us?

- If you have been sued for copyright infringement, don’t ignore it. Hire a lawyer who actually knows what they are talking about. Settlement may very well be your best option. Sorry if the internet lied to you.

- How you should respond depends on who sued you. There is a big difference between say… Prenda and Malibu. Just because certain behavior has been inputed onto one copyright plaintiff does not mean it carries over to another.

- Do not destroy evidence or try and cover up what you have done. That will only make matters much, much worse. Stop the bleeding, hire a lawyer, and try and get it worked out.

- “Taking every case to the mat” can be a recipe for disaster. Keep in mind that Does are liable for attorney’s fees. If the plaintiff has a meritorious claim, only a fool will try and fight the thing for the sake of fighting it. Consider focusing on a reasonable settlement. If you downloaded the material, the goal should be to never see the inside of a courtroom.

- If you use bittorrent to download copyrighted material, STOP DOING IT. There is a real risk you will be caught, sued in a federal court, and ultimately forced to pay far more than it would have cost you to just buy the material in the first place. Don’t be a moron and pay for your content.

- If you’ve been accused but didn’t do it, and you’re willing to testify to that under oath and produce a copy of your hard drive – fight it like hell. Just as long as you understand that lying and perjuring yourself will cause way more harm than good.

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96 Responses to The Bellwether Trial (Malibu Media v. Does) – What Have We Learned? My Five Takeaways From the Trial

  1. T Patrick Henry says:

    I always thought copyright meant you couldn’t make a buck off of someone else’s work but you could keep it for yourself. I guess I’ll avoid BitTorrent’s website. Thanks Jordan.

    • Heh.

      A copyright holder has exclusively –

      the right to reproduce the copyrighted work;
      the right to prepare derivative works based upon the work;
      the right to distribute copies of the work to the public;
      the right to perform the copyrighted work publicly; and
      the right to display the copyrighted work publicly.

      • SJD says:

        …the right to shake down alleged infringers and innocents alike, threatening to reveal their porn habits to families, neighbors and coworkers.

      • NintenDOE 64 says:

        but not the right to preemptively collaborate with a “data collection” companies to use their, debatably, copyrighted works to turn a profit via use of the legal system, that’s consent (not infringement). albeit a very dirty, dirty form of consent but consent no less.

  2. Curious says:

    Regarding the auto analogy, are you saying the negligence claims (when someone else downloads off your internet connection ) that court have repeatedly rejected are now viable? Do you now have a duty to encrypt your connection? I know that negligence claims have repeatedly been rejected as a cause of action in these suits. Did something in this trial change that?

    • I dunno.

      In a personal injury case, you would definitely have a negligent entrustment claim.

      I’d be very curious to see if a negligence argument would fly here in Pennsylvania. Despite some case law to the contrary, I think it might. At the very least, you might have an issue for trial.

      Unsecured wireless routers are so uncommon now. I don’t see how anyone with a brain could fail to secure their wireless router. Unless, of course, you were trying to avoid any responsibility for what happens on your internet account…

      • Anonymous says:

        Don’t discount habit and lack of experience. Even though my cable system came with the Wifi secure at our new house, I disabled it. I had always left it unsecure so my son’s friends could do their gaming. Also, I’d bring home one of 30 random laptops from work and was too lazy to plug in the code every time. It was never a problem because we USED to live on acreage with no close neighbors so there was no one to leach off of us. My actions were innocent based on a false sense of safety (Wasn’t even aware of torrenting/lawsuits) Our new home is next to a public school and down the street from a park. When I check my wifi, both the schools and parks wifi show up and can be accessed from my house. I was cursing the cable company for how slow the system was until I realized I had close to 100 leachers on my system. I realized this when I received a DMCA takedown notice for some Japanese Anime cartoon. I was very fortunate that I never got sued.

      • Mitch Stoltz says:

        Copyright is exclusively federal, so any liability for a person who merely runs an open WiFi router has to come from federal copyright law, *not* from state tort law (leaving aside pre-1972 sound recordings). Every court to consider this question has said so.

        Lots of people with brains see running an open WiFi node as simply being a good neighbor, allowing people in need quick and easy access to the Internet. The risks are manageable.

        A lawyer has a duty to inform his clients about risks, of course, but counseling overcaution can be as bad as counseling recklessness. The law doesn’t confer any “responsibility” on Internet providers, including casual providers of open wifi, for the acts of strangers, and implying that it does is actively harmful.

      • Douglas Muth says:

        >
        > Lots of people with brains see running an open WiFi node as
        > simply being a good neighbor, allowing people in need quick and
        > easy access to the Internet. The risks are manageable.
        >

        I strongly disagree that the risks are manageable.

        Want to make someone’s life miserable? Camp out outside of their home with a laptop (or use a cantenna so you can be further away), and do one/both of the following:

        – Portscan a high-profile government website
        – Torrent a movie that is currently playing in theaters or a popular music album

        The first item could invite unwanted federal attention. The second item could invite a copyright lawsuit. And the worst thing about this scenario is that the attention would come down on the person who owns that Internet connection and access point–they wouldn’t even be aware that their Internet connection was used for something nefarious until long afterward, and would have no idea who the guilty party might be.

        Unless you’re in a controlled area (like say, a hotel lobby, with video cameras), or you’re doing some serious packet sniffering/filtering that is well beyond the knowhow of the average Internet user, I think running an open Wifi connection is a really bad idea.

  3. Anonymous says:

    I have been following this.

    Thanks for the excellent write up. I was wondering what had happened at trial.

    The other blogs have gone totally quiet after Malibu’s victory.

    I think fightcopyrighttrolls and dietrolldie may give up the will to live after this…

    The audio recordings are awesome. Thanks for posting.

    • SJD says:

      Why? We are more resolved than ever. How can our knowledge that Lipscomb is a parasite and should be stopped be affected by this semi-victory? L. outfoxed everyone one more time (well, big time this time), but how it cancels the fact that he abuses courts and the law for personal gain while ruining hundreds, thousands of lives, and yes, some of them are innocent?

      No doubt, Lipscomb is a serious enemy, but Prenda looked like a serious enemy a year ago. Where it is now?

      I have a sizable dossier on Lipscomb’s shenanigans and going to continue shedding the light.

      And don’t forget about Fantalis: he proved that Lipscomb’s enterprise is not invincible. If not for this man, yesterday’s events would be much more graver.

      There are some good news (bad news for L.) come in the near future (sorry, my mouth is sealed for the time being).

      • bored says:

        so what exactly are you proposing? free content ? ignore piracy? take everyone through full trial?

      • NintenDOE 64 says:

        No, that isn’t what is being said. She isn’t pro piracy however they are a group who are being targeted by illegal actions by the plaintiffs. Knowingly setting up or allowing copyright infringement against you to threaten people into paying you money is a bigger crime than copyright infringement…it’s called extortion/attempted extortion (depending on your states laws) and may be additionally a RICO violation. Not every torrent download is a crime.

      • SJD says:

        @bored: I’m not a stranger to people and opinions oversimplifying this serious, complex issue.

        First and foremost, I’m proposing the elimination of insanely, unconstitutionally high statutory rates: this alone would strangle copyright trolling model. Canada moved in this direction recently introducing a legal distinction between commercial an personal infringement, capping personal at $5000.

        Small claim (c) courts can also contribute to the solution as the majority of people think that a fine for a single act of infringement should be < $100 (citation omitted). But I didn't not give a good thought to it.

        It does not matter if I condemn or approve piracy: in my opinion, ignoring it is the only viable option these days (unless you want to capitalize on piracy as trolls do, but "not ignoring" becomes "cherishing," regardless of the lies they say). As a matter of fact, X-Art does just that: ignores piracy. Orders of magnitude of people watch their smut on tube sites, and Colette/Brigham don't give a damn about it, concentrating on a small fraction of "thieves."

      • If a Doe has a triable case, they should absolutely try and it and seek fees.

        But if a Doe has a crappy case, they are just putting themselves in front of a steamroller called “The Copyright Act” in my opinion.

        In my view, if you ask a Doe “did you do it?” and they answer “yes” in a deposition, the plaintiff can move for summary judgment on liability and request a damages trial. Whether the technology is reliable is irrelevant if the Doe admits they are culpable – they only need to show it worked in this instance.

        Beyond that, as a lawyer, we’re not representing a cause here. We represent real clients with real assets, families, and liabilities. In that context, we do what is best for our client. It would be immoral and unethical of me to encourage liable Does to fight these things like crazy because it would further the cause (and make me look good).

        I am replying to the wrong post because WordPress commenting kind of sucks.

      • NintenDOE 64 says:

        @Jordan. just because you answer yes to the did you download question, it doesn’t mean you are guilty. one of the biggest problems with the way defendants argue these is they go for the easy surface issues that allow them to separate themselves from the “dirty dirty pirates”. Most of these cases hold no water because the content owner agreed to set up these lawsuits with a company that they knew would not stop or prevent the action from occurring in the first place. willful blindness didn’t work for limewire, it won’t work for them not to mention the intent to allow distribution (consent) which completely removes the copyright infringement’s validity. how many people argue that?

  4. Curious says:

    Don’t underestimate complacency, hubris, and a false sense of security in why people have unsecured internet. When we moved into our new home one of the first things I did was remove the security from the internet. Why? Because I always kept my internet open. I didn’t have to worry about plugging in the code when I brought home a laptop from work. When my son was home from college he and his friends could game. My old home was on acreage, so I never had any problems with someone leaching off of me. My new home is next to a school and across from a public park. About two weeks after we moved in, I got a DMCA notice for a japanese anime cartoon. Looked on my router and found about 100 leachers. Fortunately, I was simply warned and never sued. That’s how I became interested in these cases. Yes, NOW I have secured internet.

  5. anonymous says:

    Well Judge Judge Baylson said he would only enter statements of facts in the judgement because he wasn’t going to be an endorsement machine for these types of suits (or something to that effect). I guess we know who is the endorsement machine after reading this article.

    • No, Judge Baylson only entered statements of facts but no judgments against Does 1 and 13, because if he would have entered a final judgment it would have eliminated their right to testify anonymously. A judgment would have also crippled the Does financially for a very long time.

      I wrote this article because I felt like it. It’s not part of the settlement. No one asked me to. And you might not like it, but it’s the truth. I stand behind it fully.

      There are too many misnomers and too much false information out there about bittorrent cases on the internet. Judge Baylson said as much at trial. That is what this case proved. These cases are very real, and very dangerous if not handled properly.

      Maybe later this week I will feel more inspired and write something better.

      • Anonymous says:

        Jordan

        I do not see why some are being critical of your reporting of events.

        I am pleased to have your commentary. Just because some of it is not positive does not mean that we do not want to hear about it. The more information we have, the better.

        Personally, I would rather us have the complete picture than to rely on certain blogs created by ‘armchair’ lawyers. They have no idea what it is like to be taken all the way to trial in one of these cases. You do. They can only speculate.

        You were there, on the ground, and this case must have been a big part of your life for the past 9 months. There is nobody better to tell us what happened at the hearing.

        There are a lot of blogs out there which, in my opinion, misled Does, who make it out as if these companies do not take things all the way, who make it sound like defending these cases is somehow ‘easy’. I think that a lot of people are misled into believing those blogs. I know that they claim to be impartial but they are clouded by emotion and feelings. For that reason, they cannot be relied on for information.

        Your commentary offers balance and helps with the cause. I am firmly of the view that it will help Does make an informed decision as to how they might proceed. This is a good thing, even for those who write the other blogs to take on board. You ability to comment on new events (even bad ones) in an objective way clearly sets you apart from the others, and that is the reason why I visit your website and rely on the information.

        Thank you again. Keep up the good work.

      • Anonymous says:

        @Anonymous

        Those blogs do not mislead people in the sense that these companies generally don’t take things all the way. Usually guilty and innocent alike settle because it’s cheaper and less embarrassing. MM had to be forced to take things this fair. We saw that in how poorly organized they were pre-trial, and in how shoddy their “expert” was.

        Yes their expert was shoddy. That’s why it took him two filings of testimony to figure out that there were two hard drives in the computer and to find the real evidence of tampering. The talk about “IPP Limited was able to trace back to his IP address.” is laughable. Of course they were, this is not some shocking revelation. Finding IP addresses from a torrent swarm is as simple as joining the swarm. Most people aren’t going to be spoofing their IP address for torrenting.

        The bottom line is that MM didn’t win because they have super awesome, surefire investigation methods. They won because the people they were suing were guilty. There’s no fix for that.

        Furthermore, I have to laugh and call bullshit on his statement “Unsecured wireless routers are so uncommon now. I don’t see how anyone with a brain could fail to secure their wireless router.” Unless, of course, you were trying to avoid any responsibility for what happens on your internet account…

        Unsecured wireless routers are incredibly common. Most people do not have the technical expertise to set them up. Even if security is shipped on by default, they’ll leave it set to it’s defaults as they don’t want to mess with it, if they don’t flat out turn it off. Case in point, pulling out my cellphone at work, and checking for wireless networks reveals 6 networks, only 5 of them secured.

        Hell, the last study I know of on the matter was titled “25 Percent of Wireless Networks are Highly Vulnerable to Hacking Attacks”

        Look at the actual numbers, and it’s much worse.

        http://www.hotforsecurity.com/blog/25-percent-of-wireless-networks-are-highly-vulnerable-to-hacking-attacks-wi-fi-security-survey-reveals-1174.html

        Which brings me to my next point. His insinuation that the only reason someone wouldn’t secure their wireless is to obscure foul play is flat out revolting. It’s something I would expect to hear from John Steele.

        Many stores offer free wifi to their customers and leave it unsecured. I doubt most of them are savvy enough to go through the extra configurations to block bit torrent. Even for the home owner it’s a matter of convenience. My uncle does not have his wifi secured. Fewer headaches when his grandkids are over. He lives in a townhouse.

        This is to say nothing of how easily hackable most common routers are:

        http://news.cnet.com/8301-1009_3-57579981-83/top-wi-fi-routers-easy-to-hack-says-study/

        Most people won’t bother to hack a router for downloading stuff. Especially when it’s trivial to find an open router.

  6. I don’t want to pick any fights, but most of your five takeaways are actually untrue.

    First, this case was not actually “tried” in any real meaning of the word. You settled with all three defendants before trial. That’s like saying you won a prize fight because you paid the other guy to take a dive. There is no honor in winning a victory over someone who already agreed to take a dive.

    Second, porn may be copyrightable, but Judge Baylson did NOT hold that way. In fact, because none of the defendants challenged it, the Judge never even had to consider it. See my point above. If the defendants never challenged copyrightability, the judge doesn’t have to rule on it. That’s what Judge Baylson meant when he had to keep telling Lipscomb (over and over it seemed) that the Judge would not issue an advisory opinion.

    Third, and I don’t mean this in any demeaning way, but Lipscomb is NOT a good trial lawyer. I listened to the audio and was stunned by how bad he actually was. Toward the end the Judge was actually lecturing Lipscomb on what the difference is between Rule 41 and Rule 54 judgments. The Judge even had to offer to give Lipscomb a copy of the rules to read. Stunning.

    Fourth, vicarious liability for copyright infringement is a very well settled area of the law. You should really read up on that before you start endorsing any “negligence” theory of liability. I would recommend you read the Ninth Circuit’s recent decision in Righthaven and the decision in Luvdarts v. AT&T Mobility.

    • Thank you, John, for the dumbest comment of the day. I expect the riff-raff from people who are angry about copyright laws, but I expect more from a purported copyright attorney…

      1. Judge Baylson absolutely did hold that porn is copyrightable. I suggest you listen to the audio a little closer. I will even do you a solid – it’s at 1:00:45 in the second audio. The link is above.

      I’ll spell it out. This is what he said – “It is clear … that, the copyright laws are content neutral. And, there is no distinction between sexually explicit material and a work that is purely in print … as far as the copyright laws are concerned. It’s a work created by an individual and it’s subject to the copyright. It doesn’t matter what the content is. So pornography and adult films are not everyone’s taste, but I cannot as a judge neglect the fact that the copyright laws are content neutral, or have any prejudice or distinction based on the content of the work product of Malibu Media.”

      2. As any actual litigator would know, the case was “tried” in a sense. That is the point of the civil discovery process. Depositions are testimony, so is written discovery. The reason 99% of cases settle is because by the time discovery is finished, there are no real triable issues. This case was unique because the court pushed a trial. If it wasn’t for the court’s involvement, the case never would have gone, because no competent attorney would ever let their client see a courtroom if they were liable for the infringement.

      Which, after discovery was taken, we learned was the case for all the John Doe defendants.

      3. This case was litigated on a rocket docket. Half the issue was putting together a complex case in a short amount of time, which was made worse by all the hard drive issues associated with Doe 16. I give Keith credit for that – so did the judge. This case wasn’t easy to put together in a short amount of time by any stretch of the imagination.

      But tell me, have you ever put together a case like this in a span 8 months? (originally 6 months)

      Also, the issue with Local Rule 41 is that two of the Does were allowed to testify anonymously. The case law says that an award of money damages can’t be entered against an anonymous person, so everyone had to be clear that there was a finding on liability for two Does (Doe 1 and 13), and a money damages award against one Doe (Doe 16).

      I have no incentive to defend Keith, but I’ve lived with this case since October of 2012 and I will give credit where credit is due.

      You’re really playing armchair lawyer here.

      4. …you do know I work with Marc Randazza, right? The guy who raised the issue in the first place in Tabora? I am very familiar with the issue, and I am of the opinion the 3rd Circuit might go a different direction.

      Vicarious copyright infringement is not “very well” settled, and I suggest you look closely at the Tabora case, which was dismissed on preemption.

      In a situation where someone knows their internet is being used for infringement, and they permit it, I suspect many jurisdictions would allow a claim similar to negligent entrustment.

      Like all things in lawyer life, it would probably depend on the fact set, wouldn’t it?

      Also, I see that you write a great deal about copyright cases, but have you ever actually litigated one…?

      • I would expect personal attacks from a person like you.
        Litigation is not a trial. Litigation is depositions and motion practice. Trials are knowing how to present evidence and convince a jury. There was no trial. There were stipulations of fact with the judge issuing a damages award.

        And to your question, yes I know exactly what a real trial looks like. Here’s a link to a REAL copyright trial that I had where we convinced a REAL jury to award our client $1.3 Million about the time you graduated from law school. Any other questions?

        http://copyright.infringementadvisor.com/2007/09/lloyd-shugart-awarded-13-million-for.html

      • John – I thought your comment was an unfair personal attack on Lipscomb. Since you weren’t there, this trial was condensed significantly to get it all done in one day. It was supposed to proceed jury as of June 6 (which would have lasted about a week), but then at the last minute the court decided to hold a one day bench trial after Doe 16 confessed. Many formalities were overlooked for that reason.

        I don’t appreciate it when other lawyers try and play Monday Morning Quarterback, especially when they are only viewing something from a very narrow lens. This case lasted for 9 months, and there were many surprises along the way – including proceeding bench at the last minute.

        The rest of your comment just wasn’t correct, or at least incomplete.

      • Actually, I listened to the recording of the June 6 hearing too. What Lipscomb told the judge is that the parties had stipulated to waive the jury and proceed with a bench trial. The judge didn’t “decide to hold a bench trial.” In fact, a judge can’t do that. If either party has timely requested a jury trial, then the judge does not have the authority to deny that request regardless of the reason. It is only if both parties waive their right to a jury that the judge can move forward with a bench trial.

        And this is my fundamental problem with how you have presented this case. You make so many statements as if this “trial” was some sort of major victory for the plaintiff. It wasn’t.

        The case might have been contested through litigation, but the trial was not contested.

        Notice I made no comment about how the case was litigated before trial. I have no comment about any of that because I wasn’t following the pre-trial sideshow. I wanted to know how the trial would go. And after seeing how it went, I’m enormously disappointed that nothing was actually contested.

    • See, that is not a bad point…

      However, when the litigation process reveals everything that would have been contested, what is the point? The court wouldn’t stay discovery to determine issues raised pre-trial. That was a problem. Once Does admit that they downloaded the material, what is the triable issue?

      And if you want to know my personal spin on this – I get a lot of calls from Doe Defendants. I’m sure you do too. It goes like this:

      “Hey, do you handle bittorrent lawsuits?”
      “Sometimes. But let’s talk turkey. Did you do what they are accusing you of?”
      “No, I didn’t download anything! I was just selected at random.”
      “I’m sorry to hear that. Just let me ask you a few questions… do you have bittorrent on your computer? Do you download copyrighted stuff off the internet? Where did you get your mp3s from?”
      “Yeah, I have bittorrent on my computer, and I download copyrighted stuff, but I didn’t download THIS!”
      “C’mon. Do you know how bad that is going to sound before a jury? You have bittorent on your computer, you pirate a lot of your entertainment (including porn), but you’re supposed to convince a jury that it is more likely than not that you didn’t download this particular movie?”
      “Ok, fine. maybe I did download it. But they’ll never find it. I’ll just delete it.”
      “That’s illegal and they’ll find it. And I won’t represent you if you do that, because I’m not going to proffer perjured testimony and risk my law license.”
      “…fine.”
      “Moving on, have you downloaded other stuff from them?”
      “…yeah. Maybe like 4 site rips.”
      “How many movies is that?”
      “I don’t know, like, 60…”
      “Um, yeah, I think maybe we should reach out to the plaintiff’s counsel to consider a settlement.”
      “But dude! Did you see Judge Wright’s Prenda order!?! It was epic! These guys are criminals! Don’t they all go to jail at the end if you fight the case??? Let’s fight it!! All you have to do is fight these guys a little on the internet and it goes away! None of these cases could ever be taken into a real court! I read it on the internet! You must be a moron!”

      “sigh…”

      That is my personal spin. The public and lawyers are not taking these lawsuits seriously enough. Most of them won’t end with a Prenda Star Trek order.

      • SJD says:

        The public and lawyers are not taking these lawsuits seriously enough.

        I think you conflate “not taking seriously” with “having an alternative opinion.” Judging by your serious analysis, all 1000+ Lipscomb’s cases will be tried. Bullshit.

        I trademarked the term “Rushie theorem” (as opposed to “Bayes theorem”). Hope you understand the pun.

      • NintenDOE 64 says:

        You know, you remind me a lot of Marvin Cable, he’s a troll too, the court has also taken note of his lying, dishonest tactics, and extortion racket. funny, he had that exact view of Doe defendants…a view that even he (essentially) conceded lead to bad faith litigation and allegations because it is what, oh yeah, presumptuous.

    • “And proving induced infringement, vicarious liability, or contributory infringement are much harder than just saying “you should have secured your router.”

      I know – I said that.

      But I think if you could show actual knowledge of a subscriber, that someone was using their account for piracy and they failed to do anything, you might have a triable issue on contributory infringement. Also keep in mind that I’m not in the 9th Circuit, but the 3rd.

      To analogize (not perfectly), simply leaving your keys hanging up and your son steals the car won’t get you before a jury (on a negligence claim). Knowing your son is a drunk, maybe watching him have a few beers, and saying “Go pick me up some cigarettes” is a problem.

      So if your roomie is a notorious pirate on your internet account, and you know about it, is that enough to get it in front of a jury?

      Could there be other factors? What if the roomie burned copies of the downloaded works and gave everyone in the house the DVDs? What if everyone watched the content on his computer? etc.

      I don’t think the issue is closed yet. I could be wrong.

      • And this is my point. If you can prove that the subscriber had knowledge of the infringement, had the authority and power to stop it, but didn’t anyway, then maybe you can prove contributory infringement. But that is still not a negligence theory. That is a copyright theory. I stand by my earlier statement: you cannot prove copyright infringement by proving negligence; you still have to prove copyright infringement PLUS a lot more. You can’t obviate the need to prove copyright infringement by simply saying “you left your router unsecure so you are liable for anything I think might have happened.”

        And the difference is both huge and significant. If you want copyright damages, you have to prove a copyright claim. If you want to prove a negligence claim, don’t ask for damages under the copyright act.

      • SJD says:

        Bufo toads are psychoactive, you can get high by licking them … I don’t remember which state has the law that expressively prohibits possessing a Bufo toad ONLY IF you are aware of its hallucinogenic properties. If you are ignorant in this respect, it’s totally legal.

    • “And the difference is both huge and significant. If you want copyright damages, you have to prove a copyright claim. If you want to prove a negligence claim, don’t ask for damages under the copyright act.”

      That is an excellent point.

      But I still think it leaves a question – if you were seeking actual damages, rather than damages under the Copyright Act, why shouldn’t a copyright holder be able pursue damages under a negligence theory against someone with an unsecured wifi?

      I understand that some courts have closed the door on it based on preemption, I get that.

      But I think you could make a colorable argument (at least here in the 3rd Circuit) that you are pursuing damages for negligence, conversion, unjust enrichment, and civil conspiracy.

      Would it be preempted? There is state case law saying it could be. But I don’t think the door has been closed on it, either.

      • I think that is a very good point. I think you probably could at least get past a 12(b)(6) or summary judgment on the theory that someone’s negligence (open wi-fi) caused you harm. You would have to prove they owed you a duty, which would probably be tough but not impossible. Then you would have to prove your actual damages, which might be different than straight copyright damages. Might be the same, I don’t know.

        But what you wouldn’t get under that theory (at least as I understand it) would be statutory copyright damages, which is usually the big prize.

        So I’m not saying a negligence based theory is nonsense, quite the opposite. I’m just saying you would probably have to walk away from the copyright damages.

      • NintenDOE 64 says:

        To be honest John, that issue already came up in a hearing (1:12-cv-10805), the plaintiff’s attorney (Marvin Cable…that name again…) raised the issue and belief to the judge at the hearing, upon further inquiry Mr. Cable conceded that such allegations and theories would be in bad faith.

      • @NintenDoe: Well that settles that then. But as I said earlier, my preference would be to move forward with the negligence theory in lieu of the copyright theory if I were a defendant. You can’t get statutory damages under a negligence theory so Plaintiff would be limited to the $10 or so that the movie cost and no attys fees, at least not out here in WA.

  7. Douglas Muth says:

    If you’d like to embed a PDF, try using Scribd.com. It’s what I use.

    Thanks for this writeup, as a non-lawyer (I’m a software engineer), I found the analogy of IP addresses to license plates to be quite helpful in understanding how that works out in legal processes.

    • Anonymous says:

      While the license plate analogy is useful, it breaks down in practice. Namely it’s not negligent to leave your wifi unsecured any more than it’s negligent to leave your doors unlocked. It’s also very difficult for people to use your car without permission, where as it’s pretty easy for someone to use your IP address without your permission. Eating lunch at McDonalds, I pulled out my phone, and checked the available wifi. 6 found, 5 reported as open. It’d be pretty trivial to sit there with a laptop, download all the MM porn I wanted from one of those unsuspecting wifis, resent the router logs if they happened to be on and lasted long enough to be a problem, and by the time the lawsuit threats start pouring in, there’s no evidence that I was ever there.

      To go back to the analogy, rather than you lending your son your car and him hitting someone, it would be a case of you don’t lock your doors, and a neighbor of yours that noticed this entered your house one winter while you were out of town, borrowed your car, hit someone, then returned it to it’s same spot and put the keys back when they were done without anyone noticing. You will have done nothing wrong. Your neighbor will guilty of trespassing and likely theft. Good luck proving it was him though.

      • I don’t think it would be enough to just leave your wifi open. I think you would need to prove that the subscriber knew people were infringing over their internet, but kept it unsecured anyway. Actual knowledge, rather than constructive knowledge.

        However, what would be interesting is if the ISPs wrote in strict liability into the contract. “You are responsible for what happens on your internet. You should lock it.”

        The problem, from a policy standpoint, is why should anyone lock their internet if it’s an absolute defense? Shouldn’t someone be responsible for what happens on their internet?

        We may decide as a society that the answer is no.

        Regarding the car analogy, you’re right. Not every negligent entrustment case is a winner by any stretch of the imagination. Dad might say “Yeah, my son isn’t allowed to use the car. Not because he has a drinking problem, but because it’s my car. He stole the keys from me, and I had no idea he was going to drive around like that.”

        Dad wouldn’t be responsible. He had no reason to believe his son was a bad driver, and he didn’t entrust the car to him.

        The question is whether you have enough facts to put it on before a jury.

      • The problem with the “negligence” theory is that there is no such thing as “negligent copyright infringement.” The copyright act preempts standard common law negligence theories. That has been decided many, many times. So if you can’t use negligence, then you have to use some actual copyright theory for indirect infringement. And proving induced infringement, vicarious liability, or contributory infringement are much harder than just saying “you should have secured your router.”

      • Anonymous says:

        @Jordan Rushie

        “The problem, from a policy standpoint, is why should anyone lock their internet if it’s an absolute defense? Shouldn’t someone be responsible for what happens on their internet?”

        Don’t be ridiculous. The reasons to lock their network is the same as it’s always been. Securing it against malicious strangers so they don’t have someone packet sniffing their traffic. Keeping out people who may intentionally, or unintentionally put viruses on the network. Keeping your connection speeds from falling to crap because a couple dozen people are using your 5MBps/2MBps connection.

        Open wifi is not, and never has been about avoiding liability, it’s always been about convenience, and a trade off against these threats.

        Shouldn’t someone be responsible for what happens on their internet connection? No, homeowners have no responsibility to play copyright police. More often than not, they have no capability to do so. People that barely know what a router is aren’t going to be capable of setting up anything sophisticated. They’ll likely be relying on their kids to do any better than a default password.

        Someone is already responsible for what happens on an internet connection, the person actually doing it. A homeowner has no responsibility to monitor what their college age kids are doing on the internet. If their kid downloads copyright material while home for summer break, it’s on the college kid, not on their parent. If their teenage kids let their friends onto their wifi when they are over, and their friends download something, it’s on the friends parents, not the owners of the wifi. Assuming of course that you can figure out who actually did it.

        Which is the crux of the matter. Only the guilty person is liable. Finding that guilty person can be hard. This particular ridiculous legal theory is an attempt to shift liability from the actual guilty party to the innocent easy to hit target so that lazy Lipscomb doesn’t have to get into any real investigation, just damn their innocence and slap IP addresses with lawsuits.

  8. Mitch Stoltz says:

    Jordan, show actual knowledge, show constructive knowledge, call it “negligence” or call it Shirley Temple, but if the copyright holder can’t make a case for contributory or vicarious copyright infringement, *and* overcome defenses based on Section 230 of the Communications Decency Act and Section 512 of the DMCA, then they have no case. We *did* make a policy decision as a society not to hold Internet providers responsible for the acts of legal strangers, and it’s embodied in those statutes and the federal caselaw – not in state tort law. If you think that’s the wrong policy, you’re free to push for a change, but in that case, why represent defendants in these cases?

  9. Mitch Stoltz says:

    Incidentally Jordan, have you seen any authority suggesting that a claim of “negligently allowing a stranger to infringe a copyright” is not preempted? What’s your basis for saying that the door hasn’t closed on that claim?

  10. […] Rushie: The Bellwether Trial (Malibu Media v. Does) What Have We Learned? My Five Takeaways From the Trial (don’t neglect he […]

  11. Curious says:

    This Question is mainly for Lawyers out there, (Hi Jordan),
    Since you tried this case, and in the end the doe’s admitted to it, could they have entered into a consent judgement and remained anonymous and saved the whole boat load of MM’s legal fees?

    So basically for any other doe out there who may or may not admit to the DL if it gets to a trial, would they be able to admit and enter a consent judgement behind their John Doe name or is that a “money judgement” therefore barred from anonymity?

    any advice you give is greatly appreciated.

    • Short answer…

      Any judgment of money damages would have resulted in the Does putting their name in the public record.

      What we decided would work was to bifurcate (split) the trial into liability and damages. The court entered a liability judgment, but no money damage award, against Does 1 and 13 to protect their anonymity. Malibu (Colette) and Keith agreed to this arrangement.

      If the court had entered in a money damage award, all the names would be in the public record.

      Keep in mind that the Does didn’t ask for this trial anymore than Malibu did. The Does who were liable would have loved to have settled early on, or entered a consent judgment, but the court wouldn’t allow it.

  12. Curious says:

    So if I understand correctly a consent judgement would have been convenient for the liable parties but would still expose their names? If so, what kind of settlements do you see/propose to plaintiffs on behalf of a liable Doe (whose parents are subscribers at ISP) who has literally no assets whatsoever but wants to end it with anonymity as soon as possible? Do you think companies like CEG TEK are a real litigious threat like MM?

    • I think all your questions are probably better addressed in a telephone call. Feel free to call me this week if you want. I’ll be in tomorrow afternoon and all day Friday.

      215 385 5291, ex. 101. No charge for a phone call.

  13. Anonymous says:

    If I understand correctly (and I have been speed reading to keep up), this guy (#16 I think) was slapped with a $500,000 fine payable to the plaintiff, and he is a college aged kid. So how will this kid ever pay that off? He may never pay it off before the plaintiff is deceased from old age. And the plaintiff spend some hundreds of thousands on the case, so they are also out that money. Looks like a no win all around to me with regard to #16. How would someone like #16 ever get their life back on track after something like this? It seems to me like a lifetime sentence for wage garnishment.

    Sorry to take this a little off topic with a human issues question.

    • Doe 16 is not college aged.

      He was slapped with that kind of judgment because he:

      – perjured himself in his court pleadings and in depositions
      – destroyed evidence, and then tried to manufacture evidence to cover up his very illegal conduct
      – named the clean hard drive “squeaky” (dude, c’mon…)
      – lied to Judge Baylson about doing it, right to his face, thereby requiring the court to have to hire a court appointed expert

      Candidly, he’s lucky to have avoided jail time.

      His behavior most outrageous thing I have ever seen happen in federal court. And I like Doe 16 on a personal level.

    • Actually we have no idea what Doe 16 will actually be paying. What we do know is the number the judge came up with is meaningless. See, the Plaintiff and Doe 16 had already entered into a so-called high/low settlement agreement before this show even occurred. In case you don’t know what that means, Malibu Media and Doe 16 agreed in advance that if the number was high, then Doe 16 wouldn’t pay any more than $X, but if the number was low then Doe 16 wouldn’t pay any less than $Y.
      It’s a type of agreement that is usually made while a jury is deliberating, not before the trial even occurs. But I’m fairly certain that one of the terms of the several settlements was that none of the defendants would put up any opposition at the ‘trial,’ if you can call it that.

  14. G Thompson says:

    Well put together Jordan and your points should be required reading everywhere (especially #3)

    As for the negligent entrustment (vicarious liability) part I’m not sure like someone else above that could hold up in a copyright situation either with unsecured wireless or otherwise since the ability to open your wireless service is still legal so the burdon would be highly placed onto copyright holder that you did it for the sole reason to allow infringing activities via others.

    • Anonymous says:

      Oh please, #3 is ridiculous. An IP address is not a person, it’s a number. A number than can be obscured or stolen. Yeah they can sue, but they will never be able to win when all they have is an IP address. It’ll go something like this:

      Lips: Someone using this IP address downloaded our porn.
      Court: Was there any evidence on their computers that it was them, or evidence they covered up evidence.
      Lips: Um, no. But we’re really, really sure it was this IP address that was used.
      Court: Ok, seeing as you have no evidence, case dismissed.
      Lips: But, but the IP address!
      Court: An IP address is not a person.

      And only in his fantasy world does having an open wifi negligence. In reality, it’s as legal as leaving the doors to your house unlocked, or leaving the keys in your unlocked car.

      • I’m not sure that is correct.

        The deposition would go down like this:

        “Did you download the movie in question?”
        “No.”
        “Ok. On December 25, 2011, who had access to your wireless router?”
        “My son Joe, and my husband Mike.”

        From there, Joe and Mike would be deposed. They can lie about not downloading the movie (which is perjury), or they will have to fess up and admit it.

        This isn’t criminal defense. Depositions, which are under oath, are taken before trial.

      • Anonymous says:

        @Jordan Rushie

        Sorry, my meaning was unclear. “No evidence on ‘their’ computers” in this case means “no evidence, or evidence of tampering on any of the computers of people known to have authorized access at that time.”

        So in your example Joe and Mike would have already been deposed, their computer hard drives examined, and no evidence of infringement or evidence tampering found, and would have already truthfully testified to their innocence. At which point Lipscomb is shit out of luck.

        Having an unsecured or poorly secured wireless router does not make them guilty any more than leaving your car poorly secured makes you an accomplice if it’s stolen and used in a bank robbery.

        At that point Lipscomb is welcome to go around trying to subpeona all the people that may have been in range of the wireless connection, but he’s out of things he can do to the innocent subscriber and their innocent family.

        Again, it’s not a crime to leave your router openly accessible, and the login to the router proper left as username: admin password: password. Stupid for a variety of other reasons, but not a crime, or civil negligence.

  15. Carmine says:

    At last justice for the copyright holder who up until now had no rights against bit torrent users. I am sure this is the first of many victories. I hope to see these lawsuit results more often to get the message out, go buy or rent a dvd, go to pay per view and go to the movies. Also pay less than $2 for that song.

    • NintenDOE 64 says:

      Whoa whoa whoa, you seem to have this all wrong here, justice would imply that the content holder didn’t do anything wrong. The first problem is that most people won’t even challenge how the data was collected, which usually involves a contract before any purported copying that requires a content holder to essentially give their works away to downloaders in order to take down their IP information and then sue them, legally it is called unclean hands and it negates the copyright claim all together, that and the mere fact that they knowingly allowed or enabled their works to be shared which legally denotes consent which also negates any copyright claims. You want justice, first bring legitimate claims to the court.

  16. Dan Thomas says:

    Copyright laws are sticky and people have to be careful with what they download and use online. The internet has surely blurred the lines of copyright law, and maybe it’s time to make some changes.

  17. Curious says:

    The “IP address is not a person argument” is not ridiculous provided the person is actually innocent. It was estimated by one troll that 30 percent of the time their Identification of the infringer as the account holder was incorrect. This is bandied about in the blogosphere as a “defense” against the trolls lawsuits. What does that admission really mean? In reality, in most cases it means the infringer is a family member or roommate of the account holder. The “IP address is not a person argument” is valid IF the defendant is willing to finger her husband, son or roommate.( Provided they didn’t know about the infringement) What about leachers? When I got a DMCA takedown notice first thing I did was check my internet router. I don’t use bittorrent so there would be no evidence of it or the file on my computer. I had clear evidence of lots of leaching on my router. If you are innocent and can demonstrate an open wifi and leachers, the “IP address is not a person argument” is valid. The problem isn’t that this defense isn’t valid, its that it won’t work for a guilty person. Claiming an open wifi and leachers won’t work if the records show your router was password protected and the file is found on your hard drive.

    In reality, the issue has to do with the status of those individuals involved on the blogosphere.

    Firstly, there are those who are Guilty but angry and feel victimized by the insane legal nightmare and disproportionate punishment related to downloading.
    Secondly, there are those who are innocent but realize it was probably a spouse, roommate or child who did it.
    Thirdly, there are those who are innocent but are in denial that it was a spouse, roommate or child.
    Fourthly, there are those who are innocent and were actually hacked.

    Facing a truly dedicated plaintiff, it is only a defendant in group 4 that will ultimately prevail.

    One of the disappointments of this trial was that the defendant whose child did the downloading settled. Frankly, that misidentification of the infringer and argument about damages would have been interesting. What is the real loss from a minor copying your porn? Its not a lost sale because you can’t sell it to him in the first place.

    • “The problem isn’t that this defense isn’t valid, its that it won’t work for a guilty person.”

      It also doesn’t work if someone in the house is guilty.

      Good point, though.

      • Curious says:

        JR writes “It also doesn’t work if someone in the house is guilty.” I would think that true only if you weren’t willing to throw that person under the bus. What about a case of roommates? You are innocent, but you have a roommate you know has a porn habit (but had no idea he might be downloading porn illegally). I was in correspondence with a woman who was being sued for a Steven Segal movie. Her brother confessed that he did it to her in an EMail. She said he had no problem turning him in if it went to court. Do you mean to say that she would be liable anyway? I would think being innocent and able to point to the guilty party is a pretty good defense.

    • NintenDOE 64 says:

      @ Curious, you have that backwards, it was Mike Miere (i believe that is how you spell it) and he claimed that only 30% of the time that the identification of the account holder as the infringer was correct, which is largely why IP’s get thrown out now.

      • curious says:

        NintenDoe, it is possible, but the percentage doesn’t change the point that in most cases of misidentification, common sense tells us that the misidentified doe is either a family member or roommate of the actual infringer (plus an occasional leacher). That misidentification would probably be rectified during discovery and the “proper” doe substituted into a lawsuit. The “danger” to the plaintiff (IANAL) would be if the misidentified doe filed a countercomplaint for damages as well as judges who might sanction them ala Judge Wright for not performing an adequate investigation before naming the doe.

      • NintenDOE 64 says:

        True very true, discovery would reveal all of that information, but you seem to forget that discovery is what all trolls fear because it opens them up to revealing how their operation works and more likely that they already knew that the infringement claims were bogus, so discovery is never an intended part of their business model

      • Curious says:

        IANAL, this is my opinion only. Prenda was terrified of discovery, MM merely afraid. However, IMHO, Fantalis and the Bellwether changed that. Too many generals keep fighting the last war, Lipscomb is too smart for that. He saw his vulnerability and changed tactics. It is obvious that they are no longer engaged in trolling mass does, they are seeking individual marks.
        In mass doe trolling the strategy was to get as many names as possible, threaten them, collect the low lying fruit and move on. The danger for the plaintiff was that they were scooping up innocent spouses, parents, roommates, and neighbors of the infringers in large quantities. Yes, the truth comes out in discovery, but the potential loss for the plaintiffs attorneys encouraged them to settle or flee early in the case. Do they want a countersuit for millions in damages only to find that the actually infringer was the defendants boyfriend? Do they want to spend months in a trial and face rule 11 sanctions to find out that it actually was the next door neighbor? Do you even want the expense of discovery to discover the infringer is the indigent 20 year old son of the subscriber? Do you want to face a judge or jury assessing the damages on a 13 year old boy? No. So defendants attorneys could bluff by putting forth defenses that would only work for a truly innocent individual, convincing the plaintiff’s attorney that this doe is too expensive, risky. or unprofitable to pursue, the “fighting” doe escaped with only his attorney fees.
        Lipscomb has changed tactics. He is no longer scooping up every possible doe to name. I believe DTD investigated and showed they were pursuing only does in wealthy areas that have a history of downloading. In other words they are maximizing the potential return while also trying to limit their risk by actually (minimally admittedly) screening for innocence. I am sure they still don’t want to go to court. However, since the defendant is rich there is more potential profit and more upfront cost, they have more incentive and potential return in pursuing the case farther. This means an obstinate guilty doe that decides to out wait Lipscomb is likely to get screwed.

        I tend to disagree with Jordan’s apparent belief that most of the defense attorney’s were giving their clients bad advice. If their clients were innocent, the advice to fight is good (depending on personal circumstances). If they were guilty, it was only minimally risky because of the Plaintiffs record of response in these suits. However, I think Jordan is right that attorneys that keep giving the same advice, ignoring the changes in the playing field may be doing their clients a disservice.

    • Here is the thing… a copyright holder has an exclusive right to reproduce and distribute copies of the work to the public.

      Just because an artist or content producer uploads something to YouPorn doesn’t give the world the right to redistribute it anymore than a person can pirate a song because it’s played on the radio.

      I’m listening to New Order’s “Regret” right now on Pandora, which they have made available. But it doesn’t give me a right to download the song off bittorrent without paying for it.

      Similarly, Miley Cyrus’s “Party in the USA” is on YouTube, but if I want the song or video I have to pay for it.

      I’m just sayin’.

      Also:

      • SJD says:

        You may be right as a matter of law, but the ethical aspect of this particular troll’s actions… Did I just used words “ethical” and “troll” in the same sentence? Oh, my…

      • Mitch Stoltz says:

        Assuming that YouPorn works like YouTube, I think Jordan is right that a copyright holder posting a video there isn’t automatically giving permission to others to copy it – although one could surmise that Malibu/X-Art put videos there in order to encourage people to copy it and then be forced to settle for much more than the cost of an X-Art subscription. And if a defendant could prove that X-Art had that intention, that would probably be a defense to an infringement suit. Getting that proof would be unlikely though, unless a whistleblower like Alan Cooper comes forward, so X-Art being the uploader is unlikely to help any of their lawsuit victims.

        If the copyright holder seeds the file on BitTorrent, that’s a much clearer case – the only thing that one can do with a torrent is download it, thus, the seeder must have intended that it be downloaded. To seed the file and then turn around and sue the downloaders, as John Steele/Prenda may have done, raises a pretty clear implied license defense.

      • Mitch Stoltz says:

        Of course, SJD is right too. Intentionally putting videos outside of their paywall and then suing over them raises the scumminess quotient.

      • SJD says:

        I want to clarify my point. It’s not about legality at all. If Colette testified that because the current state of copyright law can be described using 2 words “train wreck,” Malibu is capable of threatening hapless file sharers with insane fines – that would be cynical but honest. Instead she whines that people wouldn’t buy subscriptions because its available for free… Kind of hypocritical, isn’t it?

      • Mitch Stoltz says:

        I think you’ll find that we agree on many things. For example, I’m sure you agree that a copyright owner’s ability to demand $750-$150,000 per work infringed, combined with the high cost of litigation and the embarrassment of being publicly associated with hard-core porn leads innocent people to pay to settle cases. And that as lawyers and concerned citizens we should try to reduce the number of innocent people who find themselves in that situation.

      • SJD says:

        BTW my fact finding triggered an interesting discussion on Twitter. Attorney John Giacomo:

        Don’t know that it would be a great copyright abandonment defense. YouPorn TOS provides YouPorn with a non-exclusive license to the content. More interesting is that YouPorn grants its USERS with a non-exclusive license to the content: “You also hereby grant each user of the YouPorn Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute,…” Basically, without reposting, YouPorn grants a license to the user to all of the rights permitted uses of the Website and allowed through the functionality of the website.

        I could see a user arguing, “I got a license through YouPorn.”

        It would be a terrible argument for distributing [via BitTorrent], but downloading and not seeding (a big) maybe. The argument would be that it isn’t copyright infringement, but a breach of a condition of the license agreement. If the breach doesn’t implicate the §106 rights, it is a breach of contract, not copyright infringement.

    • Wow, Mitch and I agree on something…

      I think (and I have no actual evidence for this), that YouPorn works similarly to YouTube, in that certain content producers get royalties for putting some of their works there.

      Miley Cyrus gets paid to put some of her works on YouTube. I suspect that it’s the same deal with many of the more well known porn companies and YouPorn.

      I also agree that if a content producer seeds their own works on bittorrent, they have consented (created an implied license) to having it distributed all over the internet. Because why else would they upload content to bittorrent if they didn’t want it distributed all over the internet?

      • nonameplz says:

        When you watch a YouTube video a copy is created on your computer, is that illegal? What are the legal implications here?

      • FormerDoe says:

        Did the issue of IPP possibly seeding the X-Art vids on torrent sites come up? A lot of signs point to it. Some of the new vids have hit the torrents before they show up at X-Art.com. It would be in IPP’s interest to do it too– the more stuff torrented the more they get paid.

      • SJD says:

        @FormerDoe: a clever guy Lipscomb preempted future questions with the following line in his proposed findings of fact (which is mind boggling: how Baylson could know it even it it is true? but it is another story):

        39. Twice in 2013, unknown third parties hacked into Malibu Media’s servers and put its movies onto BitTorrent prior to the time that these movies were released onto Malibu Media’s website. These incidents cost Malibu Media thousands of dollars in lost subscription revenue.

  18. Curious says:

    I believe Malibu Media’s claim that they lose business because people download their product for free. I believe they should have legal recourse. However,I have a problem with Malibu Media’s claim that they are just protecting their copyright, when they spend millions of dollars on attorney fees to litigate against random down loaders, but could eliminate the majority of their problem for a couple thousand dollars by watermarking their streams and suing initial seeders. They track activity for months on a bittorrent tracker without sending a DMCA notice to shut it down. Don’t they have any obligation to mitigate their damages?

  19. From a strategic position, I don’t understand why the defendants don’t appeal on the broader issues dealing with copyright, valuing of harm, etc. If their fines are in the six figures, and the cost of an appeal exponentially less, and the issues of interest to “good guys” third parties who might even defend pro bono — don’t pure economics dictate an appeal rather than counseling walking in front of the bus?

    • whitakerlaw says:

      The reason there won’t be an appeal is because even though the judge entered a large verdict, the defendants aren’t paying it. They had all already settled with the plaintiff before the ‘trial’ even occurred. So the judge’s verdict was essentially meaningless, nothing but a marketing tactic for the plaintiff.

      • The judge only entered an award of money damages against one defendant – Doe 16. The other two Does, 1 and 13, had a judgement entered as to liability only.

        An actual judgement entered against Does 1 and 13 would have resulted in losing their anonymity, along with ramifications to their credit. I know those things aren’t very important to you, John, (as you seem to think I represent “the cause” rather than my actual client), but they are very important to the two John Does who didn’t ask to get wrapped up in this case.

      • whitakerlaw says:

        @jordanrushie: What are you talking about? The question was why wouldn’t the defendants appeal the large verdict. I said it was because the agreements between ALL the defendants and the plaintiff means they won’t have to pay the verdict anyway.
        What does your reply have to do with any of that? Who you represented is totally irrelevant to the question of why the defendants wouldn’t appeal.
        The more you talk, the more I believe you were just a shill for Lipscomb.

      • I’m sorry you have trouble understanding stuff, John. I will use smaller words in the future so that you can understand them.

      • whitakerlaw says:

        Wow. Just wow. This confirms it. You are officially an idiot.
        Like you told Judge Baylson at the trial when he asked you if you had anything to say: “It is better to keep your mouth shut and be thought an idiot than to open it and remove all doubt.”
        I’m sure your client was very impressed with that Perry Mason-esque cross-examination.
        I don’t know what your client paid you for that representation, but whatever it was, it was too much.

      • Actually, I botched the quote far more than you are giving me credit for, John.

        I’m sorry if you are sad.

      • There is the big difference between us, John. My practice doesn’t rely on having torrent defense clients. It just doesn’t. I could go the rest of my career without another torrent defense client and it would be business as usual. I write my blog to try and put truthful information out there, not to get more clients. My torrent posts are more of a hobby than anything.

        However, I get the sense your practice relies on, at least somewhat, getting torrent defense clients. So if all the tough talk makes makes the phone ring, great. But it doesn’t make what you are posting accurate.

        The difference between us? I don’t really care if the internet disagrees with what I say. I don’t care if what I write turns potential bittorrent defense clients off. I just don’t. It makes absolutely no difference to my practice. My goal is to try and put accurate information out there.

        If people call me and ask for help, I will continue to handle these cases the right way — in a way that benefits my client, regardless of “the cause.”

        Because I don’t represent the internet or a cause. I represent the people who call me and need my help. No more, no less. And I’m okay with that.

      • whitakerlaw says:

        For what it’s worth, and not that it even matters, but you couldn’t be more wrong about my practice.
        So the real difference between us is I’m honest about representing my clients. And I don’t throw my clients under the bus.

  20. that anonymous coward says:

    “However, what would be interesting is if the ISPs wrote in strict liability into the contract. “You are responsible for what happens on your internet. You should lock it.””

    As many consumers are using equipment provided by said providers, maybe they have liability for not making sure it is secure. Oh but no can’t burden a corporation.

    The new TOS just assign blame to the account holder, but make no real noise about securing the connection because it might cost the ISP money to provide step by step instructions to non-computer savvy people… well and that who we bought the cheapest tech possible and you can hack them in seconds. DTD I think posted a wonderful article about an entire generation of equipment that has stupidly bad security for the units but the ISPs sure aren’t rushing to replace it to protect customers.

    Also the TOS changes were made to allow ‘6 Strikes’ to have clear sailing and quash people who might challenge the notion that if someone else does something with the connection it is not their fault. Your Account, Your Fault sounds compelling up until you offer up a much better example: Your Network Transported CP, Your Liable Mr. Corporation.

    Oh and ‘6 Strikes’ is/was using Vuze in violation of the TOS of that program… its on the record in Congress… where is the CFAA charges? But I digress from the copyright thing a little there…

    Oh and OHAI Jordan, (Mr. I’m to good to say hello to TAC when he says nice things about me on DTD.)

    • Haha yeah, I know, I have to respond.

      The problem with 6 strikes is only large media companies are joining in on it.

      Plus, they still harvest and maintain the data in case one of those companies decides to file a lawsuit regardless. It basically reads “Yeah, we’ll give you six strikes, unless we decide not to, in which case the ISP has agreed to give us your data so that we can sue you.”

      • that anonymous coward says:

        They have promised that lawsuits are only possible after you get at least 6 strikes. If you can go a year, IIRC, without getting a notice it gets discarded.

        Once again 6 Strikes operates like a “troll” operation, they might only get a single data point… the transparent program has been anything but.
        The simple fact that the company collecting the data has created filesharing to gather IP addresses in the past for a court case will take the legs out of any evidence they offer to a court. (Roadshow (aka AFACT) vs iiNet in Oz)
        The fact their operations also include sending out DMCA notices that are clearly faulty – Google delist these pages on HBO.com for having stolen content from HBO! – does not help their standing.

        They have created their own Corporate Law system.
        It accepts accusations as factual, limits any response to the allegations, and can met out punishment. It will be interesting to see what happens the first time they attempt to take one of these cases to court.

  21. […] The first Bellwether trial in BitTorrent litigation is done. $112,000 awarded to plainitff. Hundreds of thousands awarded in attorney fees. The best account of this event can be found from a blog by one of the defense attorneys. (The Bellwether Trial (Malibu Media v. Does) – What Have We Learned? My Five Takeaways From t… […]

  22. Brenda says:

    Guess that means your not very good eh?

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