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The Courts Piracy

All Malibu Media Subpoenas In Eastern District NY Put On Hold 67

NewYorkCountryLawyer sends an update on the progress of Malibu Media, the company that filed subpoenas and copyright lawsuits over alleged BitTorrent piracy of pornography films: A federal Magistrate Judge in Central Islip, New York, has just placed all Malibu Media subpoenas in Brooklyn, Queens, Long Island, and Staten Island on hold indefinitely, due to "serious questions" raised by a motion to quash (PDF) filed in one of them. Judge Steven Locke's 4-page Order and Decision (PDF) cited the defendant's arguments that "(i) the common approach for identifying allegedly infringing BitTorrent users, and thus the Doe Defendant, is inconclusive; (ii) copyright actions, especially those involving the adult film industry, are susceptible to abusive litigation practices; and (iii) Malibu Media in particular has engaged in abusive litigation practices" as being among the reasons for his issuance of the stay.
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All Malibu Media Subpoenas In Eastern District NY Put On Hold

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  • DMCA needs to die (Score:2, Insightful)

    by Roodvlees ( 2742853 )
    Great that anti-piracy bullshit is not enforced here, probably because it's a porn producer. But there are still plenty of reasons why DMCA is terrible and should die.
    • by jonwil ( 467024 ) on Wednesday October 07, 2015 @03:14AM (#50677219)

      This has nothing to do with the DMCA, this is a straight out copyright infringement lawsuit being filed.

      The real problem is that the methods the copyright holders (or the copyright enforcement goons acting on their behalf) are using to identify torrent users aren't good enough and its good to see at least one judge willing to call these enforcers out on it.

      • This has nothing to do with the DMCA, this is a straight out copyright infringement lawsuit being filed. The real problem is that the methods the copyright holders (or the copyright enforcement goons acting on their behalf) are using to identify torrent users aren't good enough and its good to see at least one judge willing to call these enforcers out on it.

        Exactly. Would have been nice for judges to start doing this 11 years ago, but glad they've come around.

      • IMO the DMCA is overall a good thing (especially the safe harbor provision) but has two big flaws:

        1) Anti-circumvention rules don't permit non-infringing use.
        2) There's all of about zero restitution for fraudulent take down notices. (I.e. having somebody swear under penalty of perjury on your behalf is a really weak standard, and is often used to suppress youtube videos within their first four days of being posted, which is when they get the most views and ad revenue for those who post them.)

    • No (Score:2, Interesting)

      by Anonymous Coward

      DMCA is not the problem. It needs reform, surely, but it also needs to be enforced.

      Right now as it is, pirates get away with way too much. There's pretty much no chance of getting in trouble for pirating or copyright infringement. Even if you're caught, the penalty is a slap on the wrist. Oooh, your video is no longer on YouTube. Boo hoo hoo.

      Two things need to be done to fix copyright.

      1) Reform copyright terms to 5 years by default. Copyright owners can extend it for an increasing fee, indefinitely if they

      • Re: No (Score:2, Interesting)

        by Anonymous Coward

        The fees idea is bad. In order to have any fairness with things like independent movies, or copyleft licensed code, you'd need to make it dependent on how much money the company makes with the content. And over the years, companies have collected tons of ways how to "enhance" their books so that it seems they are poor, and make no money.
        So the only thing this ruling will create is that the rich companies will be abled to protect their content indefinitely, and the smaller ones will lose protections very fas

      • Re:No (Score:5, Interesting)

        by Intrepid imaginaut ( 1970940 ) on Wednesday October 07, 2015 @04:32AM (#50677455)

        1) Reform copyright terms to 5 years by default.

        This severely penalises small content producers in favour of massive corporations, all a publisher needs to do is wait five years and they can leverage their marketing and distribution might to completely own a franchise while the original creator gets nada.

        • Re:No (Score:4, Interesting)

          by jabuzz ( 182671 ) on Wednesday October 07, 2015 @04:52AM (#50677525) Homepage

          In addition anything less than Berne Convention for copyright is a none starter; that boat has sailed. However Berne Convention is a lot less than what we have currently in both north America and Europe. Rolling Copyright terms back to Berne Convention should be the initial goal.

          • by Anonymous Coward
            A LOT less? The Berne Convention is life plus 50 years for literary works (current US law is life plus 70 years). That isn't a very significant difference. For movies, Berne says 50 years after first showing. Still not too different from US law.
            • by jabuzz ( 182671 )

              Those 20 years is a 28% increase in the after death portion of copyright. As for the movies, think about it for a moment, it would mean every movie prior to 1965 was in the public domain. Currently Steamboat Willie is still under copyright protection, it was shown in 1928, that 37 year difference is a 74% increase in the copyright, though in reality it is even more. The idea that these are not significant is just plain nonsense.

              Getting back to Berne Convention would be a massive step in the right direction,

        • by Anonymous Coward

          All the publisher has to do is pay to renew the copyright. The fees for first renewal will be low. If the work was any good, he would make enough to easily cover the small fee. And if the work didn't make any money, why would a big corporation be interested in it.

        • 5Ã--10^x would be easy to pay, with the initial registry being free. At 20 years thats 555 bucks, but almost everything enters public domain at 30-40 years after initial sale. Also, all video games must submit all source code to be distributed upon lapse of copyright.

        • by geoskd ( 321194 )

          This severely penalises small content producers in favour of massive corporations, all a publisher needs to do is wait five years and they can leverage their marketing and distribution might to completely own a franchise while the original creator gets nada.

          If after 5 years, any producer of content is relying on that content for income, then they effectively have no further value to society.

          Another way to say it is that if you haven't made your money on it within 5 years, you almost certainly never will.

          • by Anonymous Coward

            That's bullshit and you know it. But I wouldn't expect anything better from a pink-skirted lying antitheist whackjob like you. Plenty of content has made far more money after five years of production than it did within the first five years. Star Trek and classic Doctor Who are perfect examples of this. TV networks are often willing to give a fourth season to TV shows with three seasons and low ratings in the third season that would otherwise merit cancellation. The reason is that 88 episodes (four seasons)

          • Re:No (Score:4, Informative)

            by tehcyder ( 746570 ) on Thursday October 08, 2015 @09:40AM (#50685577) Journal

            Another way to say it is that if you haven't made your money on it within 5 years, you almost certainly never will.

            Not all artistic works have the short life of a Hollywood blockbuster or Top 10 music track.

  • Righthaven (Score:3, Interesting)

    by Required Snark ( 1702878 ) on Wednesday October 07, 2015 @05:37AM (#50677667)
    The "Motion to Quash" (gotta love that name) references Righthaven as an example of abuse of copyright.

    Federal courts have addressed such practices regarding plaintiffs "attempt to create cottage industry of filing copyright claims, making large claims for damages and then settling claims for pennies on the dollar." Righthaven LLC v. Democratic Underground LLC, No.2:11-cv-01356 (D. Nev. April 14, 2011).

    Somehow I find it unsurprising that pornographers and right wing nutjobs try and use the same scam.

    • What is right wing about that process? The Democrats support the movie industry, not the Republicans. Or are you one of those Europeans that thinks all of america is right wing compared to them?

      • Re:Righthaven (Score:4, Interesting)

        by NewYorkCountryLawyer ( 912032 ) <ray@NOSPAm.beckermanlegal.com> on Wednesday October 07, 2015 @02:05PM (#50680643) Homepage Journal

        What is right wing about that process? The Democrats support the movie industry, not the Republicans.

        The fact that Democrats support something doesn't negate the possibility of something being right wing. The Democrats are not ideologically pure, or ideologically homogenous, and very few of them can be considered "left".

        To me, pretending that copyright is only about property rights, and ignoring the fact that copyright was also supposed to be about free speech and about making material available for free to the public after a limited time, is definitely "right wing".

        • I can understand where you are coming from, but I was responding to this:

          The "Motion to Quash" (gotta love that name) references Righthaven as an example of abuse of copyright.
          Federal courts have addressed such practices regarding plaintiffs "attempt to create cottage industry of filing copyright claims, making large claims for damages and then settling claims for pennies on the dollar." Righthaven LLC v. Democratic Underground LLC, No.2:11-cv-01356 (D. Nev. April 14, 2011).

          Somehow I find it unsurprising that pornographers and right wing nutjobs try and use the same scam.

          What is right wing about filing a lawsuit to unmask a doe, suing that person, then settling for a much smaller amount. It seems this is used by many different trolls, and likely doesn't have any political ideology behind it. It is sleazy though. Filing a lawsuit with the intention of settling just to get a payout is wrong. It is short circuiting the justice system for personal profit.

          • What is right wing about filing a lawsuit to unmask a doe, suing that person, then settling for a much smaller amount. It seems this is used by many different trolls, and likely doesn't have any political ideology behind it. It is sleazy though. Filing a lawsuit with the intention of settling just to get a payout is wrong. It is short circuiting the justice system for personal profit.

            Yeah that's neither right nor left, it's the universal language of greedy bloodsuckers.

      • What is right wing about that process? The Democrats support the movie industry, not the Republicans. Or are you one of those Europeans that thinks all of america is right wing compared to them?

        If your "left wing" party supports big business, then I think it really is fair to say that the US is on average more right wing than Europe, certainly in economic terms.

        What complicates things is that in many European countries, the formerly left wing parties have also become centre-right (e.g. New Labour in the UK), although there do seem to be signs of a leftward swing back again, as with the anti-austerity movements in Greece or Spain.

  • The motion to quash indicates that 38% of all copyright cases filed over a certain period were Malibu (x-art). Also, it indicates that 43% are based on an IP address. I think the vast majority Malibu's cases are IP-based, though in the past they've gone after web site operators who unlawfully published Malibu's work.

    If 38% are Malibu and that's included in the 43% that are IP-based, that means that 88% of IP-based cases are Malibu.

    Assuming that Malibu's are a problem, one can solve 88% of the problem by looking at the specifics of what Malibu does and putting a stop to their particular methods. In other words, because Malibu is 88% of the problem, you only need to stop Malibu in order to solve the vast majority of the problem.

    Because Malibu did in fact download part of the copyright video from defendant's home, the Washington.edu reference is actually irrelevant. Therefore it seems to me that the one clear problem is that Malibu hasn't followed court orders to file motions under seal. Generally, they do seem to maybe be abusing discovery, though offering to setttle isn't necessarily a bad thing.

    They do have a right to protect their rights to their very fappable content, and someone in that household did in fact unlawfully violate their rights, so they COULD bring a legitimate suit and handle it properly. But they don't.

    • by sjames ( 1099 ) on Wednesday October 07, 2015 @11:39AM (#50679441) Homepage Journal

      Correction: Someone in that household, or leeching that household's WiFi or someone with a hacked cable modem or someone at the ISP downloaded that content that they may or may not have known was copyrighted.

      Or due to a clerical error, perhaps it was another household.

      • I believe the lawsuits are for UPLOADING, not downloading content. Most likely naive users not realizing that all while they are downloading using BitTorrent, they are also uploading (seeding). Correct me if I'm wrong, but you can't be punished for downloading copyrighted material, only for distributing it. Of course, one must wonder if sending someone one block out of a 100MB file is distribution or fair use.
        • Well, you asked so here it is: You're wrong (though not in a particularly meaningful way).

          You may (or may not) have noticed that copiers and copying services post rules about not reproducing copyrighted content. This is because copyright law gives the copyright holder control over who can distribute or reproduce a work. And making a photocopy is reproduction, even when it is not for distribution. When you download a copyrighted work you are reproducing it (making a copy) and that is not permitted.

          However, j

  • by Applehu Akbar ( 2968043 ) on Wednesday October 07, 2015 @08:18AM (#50678203)

    It was on behalf of a local author who presented to my user group with a sad little short story. After having published a children's book through Amazon (trade paperback POD, not Kindle) which became popular, some site in the UK popped up with a scanned copy of her book offered for sale. This is apparently a common scam targeting both print and online authors. We filed a takedown, and the pirated content was gone the next day.

    DMCA works internationally in "notice and takedown" countries, which include the EU. It's by treaty, somewhat like extradition.

    • That was proper use of DMCA, somebody was profiting off of someone else's intellectual property. Now imagine someone uploaded one page of the book while downloading the book (this is analogous to what BitTorrent does). You can't issue a take down notice to EVERY seeder, and the laws intended to stop people from selling intellectual property they don't shouldn't really apply to people accidentally distributing a very small part of intellectual property they don't own, should they? The punishment should fit t
  • by Anonymous Coward

    The judge told the porn producer to get fucked.

  • by Binkleyz ( 175773 ) on Wednesday October 07, 2015 @10:05AM (#50678765) Journal
    IANAL but I read court documents for fun (Sad, no?) via well-oilied PACER account, and this whole case has made for some very entertaining reading.

    Regardless of the merits of the practices that Mailbu Media use, it's hard to see how the film industry as a whole (not just the adult version) can really survive if the standard of proof for infringement is a concrete connection to a specific user AND a requirement that the downloader receive a usable section of the overall file(s). One of the key points in the documents seem to be that the mere possession of a file fragment is not sufficient to rise to the level of an actionable tort is pretty telling, since that would require the court to make some sort of threshold for when a piece of an overall file becomes infringing.
    • by sjames ( 1099 )

      The standard of proof HAS to be high considering that the penalties are ruinous. Beyond that, If I am to be deputized as a defender of other people's copyrights in my home, I better be getting a paycheck from the beneficiaries.

      But beyond that, the movie industry is showing no signs of damage from copyright infringement. Their profits are higher than ever.

      • No doubt that the potential liability here is truly epic.

        As to the profit side of the equation, I'm not really sure how that's quantifiable, since there is no real way of knowing what their potential income could have been absent the ability to get their content for free.

        I mean, I can admit freely that I've been a beneficiary of free content over the years, and the hundreds of dollars I've NOT spent are certainly small potatoes in a vacuum, but multiply me by a few million and that suddenly real money
        • Trying to argue with high profits by speculating that they might have made even more? At best you are arguing that they don't need copyright protection because they are doing just fine without it stopping piracy. And I would agree with you.

          But there is a more fundamental error in your argument. You are, in fact, begging the question. That is, you are relying on an unproven assumption that there was in fact more money to be made. That is bad enough to end the case, but your unproven assumption is also wrong.

          • Well, yes, money is fungible.

            But that fungibility does not alter the fact that the funds went to someone other than the studio/actors/crew/etc.

            As you note, at the end of the day, the input is the same, but the path that input takes just HAS to have some impact, doesn't it?
            • an inability to comprehend what you read doesn't slow you down, does it?

              But I'll try again anyway:

              You have to prove your assertion, otherwise you are begging the question. I demonstrated how -- even if you stretch and reach for it -- any impact would be negligible. You essentially assert that negligible is the same as having effect and try to rest your case. Hmmm...

              So you are completely fine with an assertion that someone who pirates music will gain exposure to new artists and then buy music from ones they

              • Well I guess that's the part I'm not understanding. You're saying that my decision to pirate a CD rather than buying it, with its $10 (or whatever) loss to the studio system, has zero impact on their bottom line?
                • by sjames ( 1099 )

                  If you don't have the $10 to spare for it (often true of teens and early 20s who are the largest market for music) then downloading a copy changed nothing for the copyright holder. If you didn't think it was worth $10, you wouldn't have bought it, but you might download it. Either way, they were never going to get $10 from you and you downloading the music doesn't change that.

        • by sjames ( 1099 )

          Of course, you have to also consider the probability that many of those copied media would never have been a sale. Either the person didn't have the money or didn't value it as high as the price.

    • by sconeu ( 64226 ) on Wednesday October 07, 2015 @12:14PM (#50679739) Homepage Journal

      If you want to know about the merits of the practices that Malibu Media use, go to Ars, Techdirt, or Popehat and search for "Prenda Law".

      Hint. There ARE NO merits to their practices.

      • Yep, I'm a regular reader of Popehat, and he frequently links to the others you mention, and Prenda is an even MORE egregious user of these very same tactics.
    • by NewYorkCountryLawyer ( 912032 ) <ray@NOSPAm.beckermanlegal.com> on Wednesday October 07, 2015 @01:29PM (#50680351) Homepage Journal
      The decision isn't about what is or is not copyright infringement. It's about whether you can sue somebody without any evidence that they did in fact commit a copyright infringement.
      • Yes, totally agree, but also thinking that the net result may still be that the standard of what constitutes a tort (and again, IANAL, I just enjoy this sort of thing, so please forgive me if I'm using incorrect or imprecise language) in the case of file sharing might be shaped by the larger question of who may be sued.

        If a file fragment is not enough to sustain an action against a downloader, wouldn't that also raise a 12(6)(b) question?
        • As I said, the decision has nothing to do with how much copying makes it a copyright infringement. It has to do with the fact that there is no evidence that John Doe copied anything from anybody.
          • I think we're agreeing on the same thing, just in different ways.. :)

            To this point, it seems like many courts in the past have accepted at face value that there is SOME linkage between an IP address and a person, so unless this one MJs decision becomes binding or is made a precedent across more than the EDNY, wouldn't the next logical question be to ask what actually constitutes illegal file sharing?

            In other words, if some other court somewhere accepts (seemingly without any actual evidence) that ther
            • ummmm... you might actually try reading what he wrote. Mighty big of you to say that he agrees with what you are saying.

              • ummmm... you might actually try reading what he wrote. Mighty big of you to say that he agrees with what you are saying.

                Thank you for so astutely reading that thread; I thought maybe I was losing my mind :) I keep disagreeing with him, and he keeps saying we're on the same page :)

              • I did read the post, the article and also several of the legal document that undergird this entire thing. I agree that there is ZERO basis for the suit in the first place, as there is no connection between the ip and the person. But I also note that several courts have allowed cases to proceed despite all of that, which is what I apparently am incapable of articulating in a way that resonates with anyone but me. So, I apologize for deigning to imagine that I could grasp the complexities here, and will re
    • IANAL

      I know it's childish, but I can't help sniggering when someone posts this in a thread about porn films.

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