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The Courts

Judge Calls Malibu Media "Troll", Denies Subpoena 91

NewYorkCountryLawyer writes: In what could be the beginning of the end of the Malibu Media litigation wave involving alleged BitTorrent downloads of porn films, Judge Alvin K. Hellerstein in Manhattan federal court has denied Malibu Media's request for a subpoena to get the subscriber's name and address from his or her internet service provider. In his 11-page decision (PDF), Judge Hellerstein discussed "copyright trolls" and noted that (a) it is not clear that Malibu Media's porn products are entitled to copyright protection, (b) discussed some of its questionable litigation practices, (c) Malibu's "investigation" leads at best to an IP address rather than to an individual infringer, (d) there is a major risk of misidentification, (e) Malibu has no evidence that the individual John Doe committed any act of infringement, and (f) Malibu's claim that there is no other practical way for it to target infringement was not supported by adequate evidence.
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Judge Calls Malibu Media "Troll", Denies Subpoena

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  • by Anonymous Coward

    An IP isn't an ID. About time someone figure that one out.

    • by bobbied ( 2522392 ) on Wednesday July 08, 2015 @07:39PM (#50072781)

      I'm not so sure I agree that this make sense...

      Where I don't really care about supporting the trolls and how they do business, common law says that you have the right to protect your intellectual property (i.e. that copyrighted thing) in the civil courts. Unless it is possible to discover the owner/user of that IP address though a subpoena I don't see how you can control infringement though the civil courts. There may be valid reason for this judge to refuse to issue THIS subpoena but it surely cannot be a blanket rule now that you cannot force an ISP to rat out their subscribers in civil court. Your point that an IP is not an ID, really is a red herring. Of course it's not, but it does allow the troll to request additional subpoenas to further investigate and determine if the person who's name goes on the ISP's bill is really the one likely who infringed or not. This is civil court after all...

      I think that if this troll can prove they have a copyright on the material and the right to enforce it, they will have a good case to appeal this decision and it will likely be overturned. Common law demands it.

      • I'm not so sure I agree that this make sense...

        Comcast does; they just opened up about a million public WiFi hotspots in peoples houses.

        • I'm not so sure I agree that this make sense...

          Comcast does; they just opened up about a million public WiFi hotspots in peoples houses.

          True but to use it you must log on with your Comcast credentials or pay for access beyond a trial. Public wifi is not tied to the home suscriber so any activity is not assigned to that IP address, and any usage counts against the users account limts not the routers owner's account.

          • True, but Comcast's wifi network seems to authenticate based on MAC addresses. Sniff, spoof, and done.

          • Not necessarily, there have been a few times where Comcast has opened up these APs for use with out logging in. This was happened after the major flooding in Texas. No login, just hop on to the AP and go.

        • by uncqual ( 836337 )

          Yes, but Comcast knows which subscriber's credentials were used to connect and each device gets its own IP address. I'm sure Comcast keeps track of this (as well as the MAC address of the connecting device).

          • Re: (Score:2, Interesting)

            by Anonymous Coward

            Yes, but Comcast knows which subscriber's credentials were used to connect and each device gets its own IP address. I'm sure Comcast keeps track of this (as well as the MAC address of the connecting device).

            Just because someones credentials were used, still doesn't prove it was that person. Come on... I can fire up a copy of wireshark or airsnort or firesheep and be on most wireless hotspots in a few minutes without ever having to provide my information. Additionally, in a household .. the account holders credentials are used be everyone in the household .. and worse by all the friends that come by and need access.

            There are probably 100 different ways to be on a hotspot and not be the registered owner of

            • by uncqual ( 836337 )

              Yes (mostly), but xfinitywifi doesn't seem to be any less trackable than most home wifi setups (and, in fact, is more trackable than most).

        • A million? I wonder how many of those have the Comcast router in a Faraday cage while a different router is broadcasting the Comcast BSSID as part of a home credit card harvesting scheme.
      • Judge Hellerstein discussed "copyright trolls" and noted that (a) it is not clear that Malibu Media's porn products are entitled to copyright protection...

        Normally, a judgment that a work is "pornographic" disallows copyright protection in the US, just as giving a prostitute money and not getting "relief" cannot be tried as a fraud in court. An illegal contract cannot be tried in court because it is illegal, therefore, unenforceable.

        Some cases in some places have ended differently. IANAL.

      • I think that if this troll can prove they have a copyright on the material and the right to enforce it, they will have a good case to appeal this decision and it will likely be overturned.

        You also have to prove that the person you're suing actually committed the infringement. It's not enough that they paid the bill for an internet service account that somebody used to commit an infringement.

        • This is civil court.. "Proving" something is a bit easier than you imagine, however you are correct that they must pick somebody to name in the suit. The problem though, is that the name on the bill is likely going to be considered "responsible" for the infringement because it was most likely them and not someone else.

          You see, civil court is about "what's most likely to be true" and not iron clad proof. So they may not be able to prove beyond a shadow of a doubt you did it, only that it was most likely

          • This is exactly why I do all of my torrenting using my neighbors' wifi while they're out of the country on vacation, and setting my computer's MAC address to one sniffed from the local DA's office or police station.
            • Clever...

              And this is why I encrypt all my WiFi traffic and have MAC filters fully engaged when I'm not there to validate who's connecting.

              You may get ON my network, but unless you crack the keys and sniff a valid MAC address, you won't get very far.. I suggest you use the other neighbor's open WiFi, it will be easier for you.

      • There's apparently a blanket rule against using the court system to conduct fishing expeditions.

        • There's apparently a blanket rule against using the court system to conduct fishing expeditions.

          If so, most judges have been unaware of it these past 10 years.

        • There's apparently a blanket rule against using the court system to conduct fishing expeditions.

          Depends on what you consider "fishing" to be. If they can prove that infringement took place and that they are simply trying to find out who did it, I believe they have the right to file suit and use the power of the court to force the disclosure of information by third parties so they CAN find out who is responsible.

          If you consider "fishing" to be using the courts to determine if infringement actually happened or not, where they don't know if it occurred, then yes, that kind of activity IS forbidden as a

      • by gnasher719 ( 869701 ) on Thursday July 09, 2015 @05:03AM (#50074369)

        I'm not so sure I agree that this make sense...

        You didn't read the judges 11 page opinion then, where he makes his reasons very clear. Among other things, the trolls claim that they need the information to take people to court, but they never do; they just abuse the courts as a cheap way to get information for their blackmail scheme.

        The point that an IP is not an ID is exactly the point here, because the copyright troll wouldn't have any right to the name of anyone than the copyright infringer. And the fine judge found out that these copyright trolls have in several instances just ignored court orders and have just lied to the courts.

        • I'm not so sure I agree that this make sense...

          You didn't read the judges 11 page opinion then, where he makes his reasons very clear. Among other things, the trolls claim that they need the information to take people to court, but they never do; they just abuse the courts as a cheap way to get information for their blackmail scheme. The point that an IP is not an ID is exactly the point here, because the copyright troll wouldn't have any right to the name of anyone than the copyright infringer. And the fine judge found out that these copyright trolls have in several instances just ignored court orders and have just lied to the courts.

          Well said

        • IF the judge was upset with them, what he did was totally stupid and will be overturned on appeal. That the trolls where able to settle out of court is NOT his concern, that they filed suit and it never makes it to trial is not grounds for being upset with them. Such things happen ALL THE TIME and only a fraction of civil cases actually end up in the courtroom in front of a jury, trust me, I know this first hand.

          Now if the trolls where ignoring the judge's orders, he needs to find them in contempt and le

      • I have a non-protected SSID at home. Everybody can use my Internet connection. I have it set up for visitors, but it can be used from the street.
        So getting my name is no better than getting the name of my provider/telco. We both allows 3rd parties to use our network, and are not responsible.for what our users are doing. The difference is, that the Telco knows who pays the bill. I do not know who uses my network. But in my household, I have 2 sons and a wife.

        Who are they going to blame ? Should they search a

        • Look, this is CIVIL court not criminal court so if you get served because somebody you don't know was running bitTorrent on your open network, it sucks to be you, but that's what you get for being kind of stupid. You can try the "somebody I don't know did this" defense, and it might work for you, but it very well may not. In civil court the burden of proof is not "beyond a shadow of a doubt" but something much less.

          I would suggest that if you want to make this defense, that you do two things. 1. You main

      • The real reason that the judge is coming down on them is there behavior during the precedings. Malibu Media has been known to drop the names of the people they are suing in relation to their preferences in pornography as a shaming tactic to force the party into a settlement. The judge new about this tactic an before the trial began ordered Malibu Media not to disclose the names of any defendants. Malibu Media ignored the order and dropped the names that they had anyway which royally pissed off the judge.

        • Perhaps, but if that's the case, the judge acted stupidly. He should have just found them in contempt and levied sanctions on them for it and not resorted to this tirade of refusing subpoenas. If he really is just angry, then what he did will be overthrown on appeal.

          • I actually think that this is a wise decision considering the people he is dealing with. He knows that Malibu is willing to ignore judicial instructions concerning the identities of individuals involved in the lawsuit, and it's not like the reasons given in his rebuttal from the article are wrong. If anything this feels like he is covering his bases to limit the appeal opportunities for Malibu. Remember if he holds Malibu in contempt then they can appeal, and go judge shopping. This way he can keep them

            • Remember, Malibu Media can just change venues too and start this all over again... This judge didn't do anything worth while for you and me and opened himself up to an appeal where he obviously will be slapped.

              About the only thing he accomplished is getting Malibu Media out of his courtroom and off his docket, for now. Nothing else will change.

              • Remember, Malibu Media can just change venues too and start this all over again... This judge didn't do anything worth while for you and me and opened himself up to an appeal where he obviously will be slapped. About the only thing he accomplished is getting Malibu Media out of his courtroom and off his docket, for now. Nothing else will change.

                I beg to differ.

                Malibu Media can't choose the venue, or the judge.

                If Judge Hellerstein's decision is followed by other judges, it will be the death knell of the present wave of Malibu Media litigation.

                • Remember, Malibu Media can just change venues too and start this all over again... This judge didn't do anything worth while for you and me and opened himself up to an appeal where he obviously will be slapped. About the only thing he accomplished is getting Malibu Media out of his courtroom and off his docket, for now. Nothing else will change.

                  I beg to differ. Malibu Media can't choose the venue, or the judge. If Judge Hellerstein's decision is followed by other judges, it will be the death knell of the present wave of Malibu Media litigation.

                  If other judges follow this precedent, it will be the death knell of civil litigation involving the internet in any way. I don't like how trolls do business, but I don't think changing the rules like this is a good idea overall.

                  • If other judges follow this precedent, it will be the death knell of civil litigation involving the internet in any way. I don't like how trolls do business, but I don't think changing the rules like this is a good idea overall.

                    This isn't changing the rules. This is following the rules.

                    See my article in the ABA's Judges Journal about how judges had been bending the rules for the RIAA. "Large Recording Companies v. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigation". The Judges' Journal, Judicial Division of American Bar Association. Summer 2008 edition, Part 1 of The Judges Journals' 2-part series, "Access to Justice".

                    • I think this judge IS changing the rules, but hey, I'm not a judge, a practicing lawyer in the jurisdiction in question (or any jurisdiction for that matter), I don't play a lawyer on TV and I didn't stay at a Holiday Inn Express last night.

                      So if you get served one of these lawsuits, I suggest you get a lawyer and skip the commentary on Slashdot. Better yet, don't let anybody download stuff that infringes on other people's copyrights on your internet connection...

                      But I don't see how one can proceed with a

                    • I could tell that you're not a lawyer. Your total ignorance of the law was a dead giveaway.
                    • Insert bad lawyer joke here.... Total ignorance of the law eh? That from a New York lawyer? What's wrong, couldn't get areal job?
      • The requested subpoena does not provide the information requested by the plaintiff Were I John Doe, accused of torrenting Malibu Media's sketchy porn, their IP address would simply identify the Netgear router behind my cable modem. There are three networks behind that - one wired, two wireless. As a matter of policy, I don't keep access logs, so you won't be able to discriminate between me, my wife, my brother, my brother-in-law, my friends, or any of a dozen or so individuals who I allow to access one o
        • Remember this is civil court, so if you think this arrangement fully protects you, you are sadly mistaken. Also remember that in civil court the level of proof is "most likely" not "beyond shadow of a doubt".

          If you pay the ISP bill, then you are "most likely" responsible in the eyes of a civil court. If you are going to try the "it wasn't me" defense, you are going to need some kind of evidence of this. Just describing your network configuration isn't going to help you all that much.

          Also, remember how t

          • I understand the lower threshold for Civil vs. Criminal, but your logic is flawed. If I'm on a bus, and someone in the back yells something slanderous about me, you seem to think the bus driver is culpable because he's in charge of the bus. Just because a situation is complicated doesn't mean the legal system can arbitrarily assign guilt for procedural convenience.

            Your "most likely because you pay the bill" claim might have been valid back in the 90s when there was a single hard-wired computer/modem i
            • I fully appreciate your perspective and I agree that the waters are getting pretty muddy when you start trying to tie an IP address to a person, but the issue here is the issuing of the subpoena and not letting Malibu Media pursue discovery. They must be allowed to protect their rights in civil court, and that means they must be allowed to subpoena third parties for information so they can move from "John Doe" to an actual name and in this case, that takes a subpoena from the court.

              What you are arguing is

              • I fully appreciate your perspective and I agree that the waters are getting pretty muddy when you start trying to tie an IP address to a person, but the issue here is the issuing of the subpoena and not letting Malibu Media pursue discovery. They must be allowed to protect their rights in civil court, and that means they must be allowed to subpoena third parties for information so they can move from "John Doe" to an actual name and in this case, that takes a subpoena from the court.

                While your argument for discovery has some logic to it, it is based on a false assumption of fact : that Malibu Media, once it obtains the name and address of the internet account subscriber, will serve a subpoena on that person in an attempt to find out the name of the person who should be named as a defendant.

                Malibu Media's uniform practice, once it gets the name and address, is to immediately amend the complaint to name the subscriber as the infringer/defendant and then serve a summons and amended compl

                • Yes, so? That's how it's done... Once you have a defendant to name, that's what you do, amend your suit and serve the defendant. Why would you issue a subpoena to the subscriber, and for what? Once the suit is filed and served, it is time for discovery proper, so you start up that process. If the subscriber wants to present evidence or ask questions of the other side, then it's time to do so once the suit has been served...

  • by Anonymous Coward on Wednesday July 08, 2015 @07:16PM (#50072701)

    "if the Motion Picture is considered obscene, it may not be eligible for copyright protection."

    This is a win for us all. I consider everything Hollywood produces obscene.

    • by taustin ( 171655 ) on Wednesday July 08, 2015 @07:44PM (#50072807) Homepage Journal

      Obscene has a specific (if very fuzzy) legal definition [cornell.edu]. Essentially, until it's been ruled obscene by a court, it isn't. This is a canard, by a pissed off judge. (Fortunately, the rest of his reasoning is pretty solid.)

    • I don't know what Malibu media produces but I imagine it's your basic porn garbage. Since Larry Flint pornography has been legal, so I think the judge was way overreaching here..

      However I do agree with you about the quality of stuff coming out of Hollywood these days. I just don't think it reaches the legal definition of obscene.

    • by Nidi62 ( 1525137 )

      "if the Motion Picture is considered obscene, it may not be eligible for copyright protection."

      Does this mean we can now copy every Uwe Boll movie with impunity?

    • That's exactly my question. That seems a pretty low bar to deny one of the fundamental protections of IP law.

      Donald Duck doesn't wear pants or any lower-body covering (except, oddly, when he's just come out of the shower - go figure); if a stick-figure drawing of an adult and child having sex is enough to get someone into trouble, how is that not obscene by some similarly-flexible standard?

  • holy shit (Score:2, Informative)

    by ihtoit ( 3393327 )

    a. absolutely they are, as much as Michael Bay's dross is. Pornography is legal. Images depicting scenes of child abuse, AKA kiddie porn, is anything but pornographic. I'm fucking sick of people referring to such imagery as "porn". IT'S CHILD ABUSE.
    b. define "questionable" without being clickbaity
    c. This is a restatement of the Washington district judge from last January who dismissed a slew of John Doe suits based on IPs since Doe suits are illegal anyway.
    d. misidentification or lack of identification? Mak

    • by Anonymous Coward

      a. I agree porn can be covered under copyright laws but where does it mention kiddie porn?
      b. seems to me the intentions of Malibu is questionable, are they are in good faith trying to protect their copyright or profit via lawsuits.
      c. Nothing wrong with referring back to precedence.
      d. where are do they say lack of identification? Making stuff up again like the kiddie porn comment to get a rise.
      e. So someone peed in the pool, you have proof because there is urine in the pool. Now everyone needs to give a DN

    • by Anonymous Coward

      Images depicting scenes of child abuse, AKA kiddie porn, is anything but pornographic. I'm fucking sick of people referring to such imagery as "porn". IT'S CHILD ABUSE.

      That would be true if the laws were a little more sane. I hope for the sake of real victims you're not conflating legit child abuse with everything that legally falls under the 'kiddie porn' label.
      Older kids fooling around with their cameras is not child abuse, and let's face it, some 13-17 year olds are well developed and self-produce content that almost all people would find pornographic, but legally it's "kiddie porn". There's quite a large gray area when you're talking about kids at the age where, thro

      • by ihtoit ( 3393327 )

        BZZT! Want to try again?

        In England, an underage male having sex with an underage female would be up for statutory rape. A woman having carnal knowledge of an underage male would be up for child abuse but not statutory rape. Section 5(1) of the Criminal Law Amendment Act 1885 provides for carnal knowledge of a girl under the age of 16 but the same Act does not provide for carnal knowledge of a male of any age (because Victoria didn't believe that a: homosexuality was normal hence any carnal knowledge of a ma

  • commentSubject (Score:2, Insightful)

    by Falos ( 2905315 )
    >(a) it is not clear that Malibu Media's porn products are entitled to copyright protection
    You've gone to great lengths to teach the population that EVERYTHING is imaginary property. If I can have legal control over any being in the universe touching the idea of round wheels, I can certainly own my filmography. You don't snub Malibu there.

    >(b) discussed some of its questionable litigation practices
    I guess they used dick moves? I guess you have to be a certain grade of "rich" to be allowed to la
    • I guess they used dick moves?

      Considering it is porn I'd say they did

      Now set some fucking precedent.

      The court just did...

    • The activity is abuse; the images are evidence. Looking at pictures in your basement is a victimless crime; producing such images is a crime with a victim.
  • by Jane Q. Public ( 1010737 ) on Wednesday July 08, 2015 @08:04PM (#50072863)
    Hi, NYCL! I haven't noticed you around here much lately.

    Is item F even a thing? Since when does the difficulty of enforcing a law allow judicial expansion of the law? I thought that idea had been thoroughly buried a long time ago.
    • I should clarify: I didn't mean actual expansion of the law.

      What I meant in regard to item "F" was: since when does difficulty of enforcement, even if they did prove it, justify loosening the standards of evidence? I did not think that was allowable.
      • IANAL, but there was a case a while back that a judge used that reasoning to allow something that otherwise would not have been. It was crazy then, and still is, but that is what happened.

      • I should clarify: I didn't mean actual expansion of the law. What I meant in regard to item "F" was: since when does difficulty of enforcement, even if they did prove it, justify loosening the standards of evidence? I did not think that was allowable.

        Well I knew exactly what you meant Jane, even before you 'clarified' it.

    • Re:F? (Score:4, Insightful)

      Hi, NYCL! I haven't noticed you around here much lately. Is item F even a thing? Since when does the difficulty of enforcing a law allow judicial expansion of the law? I thought that idea had been thoroughly buried a long time ago.

      I have to agree with you Jane Q. For 10 years I've been trying to wake the courts up to the fact that they're not supposed to bend the law to help content owners just because the content owners don't know who committed the infringement. Glad to see them coming around.

  • Judge Hellerstein (Score:4, Informative)

    by GigaplexNZ ( 1233886 ) on Wednesday July 08, 2015 @08:47PM (#50073051)
    Judge Hellerstein is on a roll [arstechnica.com].
    • by AJWM ( 19027 )

      I guess there's no chance in hell of him ever being nominated to the Supreme Court.

      *sigh*

  • by ShaunC ( 203807 ) on Wednesday July 08, 2015 @08:50PM (#50073059)

    Hi Ray, nice to see the NYCL moniker around here again. I have a few questions if you're willing.

    First, you indicate that a judge has denied discovery due to several factors, one being that an IP address does not identify any particular individual. Can you speak to the weight or breadth of this specific Court's opinion here, in layman's terms? I see references to the Eastern and Southern districts of New York, might this decision influence cases outside of those jurisdictions?

    Second, this business of "if the Motion Picture is considered obscene, it may not be eligible for copyright protection." I've read about certain cases where the Court stated that obscenity has no rigid definition, but "I'll know it when I see it." Does that have any bearing on the Malibu case? Was this some kind of completely outrageous pornography, where any community standard would likely find it to be obscene, or was it just run-of-the-mill porn? Would it matter either way? Would the opinion have likely been the same if the case involved a blockbuster Hollywood film instead of a pornographic and potentially obscene film?

    Lastly, I'm curious whether or not you've kept up with developments in the case regarding Prenda Law, and how you might compare this case to that one, if at all. I try to read Ken White's PopeHat blog every once in awhile to see how poorly the Prenda copyright trolls are faring. It doesn't look good for Prenda, and I wonder if you would put Malibu in the same proverbial boat.

    • Hi Ray, nice to see the NYCL moniker around here again. I have a few questions if you're willing. First, you indicate that a judge has denied discovery due to several factors, one being that an IP address does not identify any particular individual. Can you speak to the weight or breadth of this specific Court's opinion here, in layman's terms? I see references to the Eastern and Southern districts of New York, might this decision influence cases outside of those jurisdictions?

      It's not binding on anyone. But Judge Hellerstein is a very well respected judge, so it will probably have a lot of 'persuasive authority'.

      Second, this business of "if the Motion Picture is considered obscene, it may not be eligible for copyright protection." I've read about certain cases where the Court stated that obscenity has no rigid definition, but "I'll know it when I see it." Does that have any bearing on the Malibu case? Was this some kind of completely outrageous pornography, where any community standard would likely find it to be obscene, or was it just run-of-the-mill porn? Would it matter either way? Would the opinion have likely been the same if the case involved a blockbuster Hollywood film instead of a pornographic and potentially obscene film?

      I haven't researched that question yet, and I may well be litigating that issue in the near future, since I have several cases against Malibu Media which are now in litigation mode... so all I can say is, stay tuned.

      Lastly, I'm curious whether or not you've kept up with developments in the case regarding Prenda Law, and how you might compare this case to that one, if at all. I try to read Ken White's PopeHat blog every once in awhile to see how poorly the Prenda copyright trolls are faring. It doesn't look good for Prenda, and I wonder if you would put Malibu in the same proverbial boat.

      The Prenda people are a bunch of strange people who, based on reports I've read, may well wind up doing jail time. I know nothing about the Malibu Media people. If I did find out something really bad about them in would probably wind up in my court papers if relevant to the case or to their credibility.

  • The judge in this case is obviously angered by the plaintiff's behavior, and isn't willing to let the Federal Courts be used as a tool in a shake-down operation.

    Now. IF these "Doe" cases actually resulted in real suits against named defendants, the story would be different.

  • Malibu Media were hit with a sanctions order in Wisconsin a few years back for the exact same thing. That didn't stop them, so I don't see how this changes anything.

The unfacts, did we have them, are too imprecisely few to warrant our certitude.

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