Divided Infringement

March 23, 2016

Copyright Litigation: Forensic Exam, Testimony Fail to Demonstrate Infringing Material on Defendant’s Computer

Chicago, Illinois – Magistrate Judge Geraldine Soat Brown of the Northern District of Illinois granted the motion for summary judgment of John Doe, the anonymous Defendant sued by pornographer Malibu Media LLC (“Malibu”) on allegations of copyright infringement.

Plaintiff alleged that, between May 2013 and July 2013, Defendant infringed Malibu’s copyright in 24 movies by downloading them from the internet using file-sharing software known as BitTorrent. Copyright attorneys for Malibu filed a copyright infringement lawsuit against Defendant, stating that Defendant had been identified by the internet protocol (“IP”) address that had been used to infringe. Defendant was permitted to litigate anonymously as “John Doe” (“Doe”).

Malibu submitted various pieces of evidence to support its contentions that Doe had infringed the copyrights on Malibu’s works, including a declaration by the founder of Malibu and declarations of various experts, such as forensic investigators. Doe denied Plaintiff’s claims and contested its method of proof.

The court evaluated Malibu’s evidence, noting that some of it was simply pro forma and included no relevant and particularized statements about the copyright infringement that Malibu alleged had been committed by Doe. The court stated that at least one pleading was described by Malibu as containing attached materials that had not, in fact, been attached. Other material was described by Malibu as having been sent to the court, while the court indicated that it had never been received.

The court also reproached Malibu’s attorneys for misrepresenting to the court the court’s earlier statements regarding the relevant evidentiary requirements to prove Doe’s liability. It further noted that Malibu had failed to adhere to required procedures, such as the serving of several disclosures under Rule 26(a)(2). Because those disclosures had not been made, and because the court held that the failure to disclose was evidence of at least willfulness, if not bad faith, two of Malibu’s declarations were stricken in their entirety as were portions of a third declaration. All of Malibu’s statements of fact that relied upon the stricken material were also excluded from evidence.

The court subsequently concluded that “Malibu has no evidence that any of its works were ever on Doe’s computer or storage device,” stating that Malibu’s contention that Doe had used visualization software to infringe Malibu’s works was merely speculation:

Malibu admits that there is no evidence of visualization software on Doe’s computer, and not even any evidence of the deletion of visualization software. Malibu says that is “beyond fishy,” and speculates that Doe must have deleted visualization software from his computer in some way that hides the fact that it was deleted, and then extends the speculation to suggest that Doe must have done that deletion to hide his infringement of Malibu’s works. That is not evidence that Doe copied or distributed Malibu’s works.

The court granted Defendant’s motion for summary judgment. Plaintiff’s motion for summary judgment, which asked the court to conclude that Doe had infringed its copyrighted works, was denied.

Practice Tip #1: Malibu has filed a multitude of virtually identical lawsuits around the country. According to a recent case in New York, “Malibu is a prolific litigant: between January and May 2014, for example, Malibu was responsible for 38% of copyright lawsuits filed in the United States.” Malibu Media, LLC v. Doe, No 15 Civ. 4369 (AKH), 2015 WL 4092417, at *3 (S.D.N.Y. July 6, 2015).

Practice Tip #2: We have blogged about Malibu Media’s litigation exploits before. Some recent posts include:

• Magistrate Rejects Malibu Media’s Request for Fees and Sanctions
• Malibu Media Sues Nine Additional “John Does” Asserting Copyright Infringement
• Fourteen New Lawsuits Asserting Copyright Infringement Filed by Malibu Media
• Malibu Media Alleges Infringement of Thirty Copyrighted Works

• Another John Doe Sued by Malibu Media on Allegations of Copyright Infringement

May 14, 2015

Ninth Circuit Copyright Proceedings: Prenda Law Parties Ask to be Prosecuted

By Overhauser Law Offices, LLC

San Francisco, California – A lawyer for Prenda Law argued before the United States Court of Appeals for the Ninth Circuit and was heard by Judges Harry Pregerson, Richard Tallman and Jacqueline Nguyen. The appeal focused on the rulings of U.S. District Court Judge Otis Wright II.

The intellectual property attorney representing Prenda Law, the now-infamous copyright trolling law firm, squared off with the judges of the Ninth Circuit recently. In a hearing before the appellate court, he contended that the district court had denied due process to the Prenda Law parties. He noted that Judge Wright had threatened incarceration argued and, in doing so, Judge Wright had indirectly initiated a criminal contempt proceeding.

“The entire proceeding was tainted. Mark Lutz, the CEO of Ingenuity 13, was not allowed to testify. As soon as they asserted their Fifth Amendment rights, the judge stopped the proceeding,” Prenda Law’s lawyer said. “He can’t use that against them,” he continued, arguing that Judge Wright had punished the Prenda Law parties for invoking their Fifth Amendment rights against self incrimination.

July 11, 2014

Indiana Copyright Litigation: Count in Dallas Buyers Club Copyright Lawsuits Reaches 80 Defendants

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Dallas Buyers Club, LLC of The Woodlands, Texas has filed three additional complaints against Doe Defendants in the Southern District of Indiana. Two of these latest complaints include allegations against 20 separate as-yet- MV5BMTg0MDc3ODUwOV5BMl5BanBnXkFtZTcwMTk2NjY4Nw@@__V1_SX214_CR0,0,214,317_AL_.jpg unidentified Defendants, while the third lists 16 new Defendants. The Doe Defendants are accused of infringing the copyright of the motion picture “Dallas Buyers Club,” which has been registered with the U.S. Copyright Office.

The movie in question, Dallas Buyers Club, stars Matthew McConaughey (pictured) as an AIDS patient who smuggled unapproved AIDS-treatment drugs into the United States during the 1980s for his own use and to distribute to others afflicted with AIDS. The movie was nominated for six Academy Awards and won three. Matthew McConaughey and Jared Leto also won Oscars for Best Actor and Best Supporting Actor, respectively, for their performances in the movie.

These copyright lawsuits are in addition to another similar complaint filed recently by Plaintiff, wherein 24 separate Doe Defendants were sued. In these latest Indiana copyright infringement lawsuits, filed by a copyright lawyer for Dallas Buyers Club, LLC, Plaintiff asserts that the copyrighted movie was infringed by another 56 as-yet unnamed individuals, who were sued as “Doe” Defendants.

Plaintiff alleges that this copyright infringement occurred using the “BitTorrent protocol,” which is different from the standard peer-to-peer protocol. Specifically, the BitTorrent protocol enables numerous computers, even those with low bandwidth, to exchange pieces of a computer file among themselves. Each computer that has downloaded a particular piece of a file then becomes a source from which other computers may download that piece of the file. As a result, the entirety of a computer file may be disseminated across the Internet quickly without having to rely on a central source from which to download.

Plaintiff contends that Defendants in each lawsuit acted as part of a “collective enterprise” to infringe its work and that the acts constituting the infringement were “willful, intentional, and in disregard of and with indifference” to Plaintiff’s intellectual property rights.

The court is asked to enter judgment for the following monetary and injunctive relief:

• for entry of permanent injunctions providing that each Defendant shall be enjoined from directly or indirectly infringing Plaintiff’s rights in the movie;
• for judgment that Defendants have: a) willfully infringed Plaintiff’s rights in its federally registered copyright pursuant to 17 U.S.C. §501; and b) otherwise injured the business reputation and business of Plaintiff;
• for actual or statutory damages pursuant to 17 U.S.C. §504 in an amount to be determined at trial;
• for an Order of Impoundment under 17 U.S.C. §§503 and 509(a) impounding all infringing copies of the movie that are in Defendants’ possession or under their control; and
• for attorneys’ fees, litigation expenses, including fees and costs of expert witnesses, and other costs of this action.

Practice Tip #1:

Copyright trolling, also known as “porn trolling” when the plaintiff owns copyrights to pornographic material, has changed in the years since the practice began. Most early lawsuits were filed against tens, hundreds or even in excess of a thousand anonymous defendants. When judges such as District Judge Otis Wright made it clear that this misjoinder would not be permitted, porn trolls began filing multiple lawsuits claiming copyright infringement against single defendants.

Porn trolls also responded to this change in the judicial landscape by adding a new exhibit, “Exhibit C,” with each filing. Exhibit B to each complaint was a legally relevant listing of the Malibu Media copyrights that were allegedly infringed. However, Exhibit C listed other pornographic material – material not owned by Malibu Media – allegedly downloaded by the internet protocol address of the accused.

While the titles of Malibu Media’s copyrighted works are often fairly innocuous – “Almost Famous,” “Blonde Ambition” and “LA Plans” are among their works – the titles listed in Exhibit C were decidedly not. In response these and other Malibu Media copyright litigation tactics, one federal judge, District Judge William Conley, said, “[t]hese Internet copyright infringement cases … give off an air of extortion.” He sanctioned Malibu Media’s counsel under Rule 11 and ordered a fine of $2,200.

Practice Tip #2:

Mass misjoinder in copyright cases has also been flagged as impermissible in other, non-pornography, cases that assert copyright infringement against multiple defendants. In one recent Indiana copyright lawsuit, Magistrate Judge Denise K. LaRue, writing for the Southern District of Indiana, severed all but one defendant from the copyright infringement complaint of Richard Bell, an Indiana copyright attorney. The court also ordered Bell to pay separate filing fees for each new cause of action.

July 9, 2014

Indiana Copyright Litigation: Dallas Buyers Club, LLC Sues 24 Doe Defendants for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Dallas Buyers Club, LLC of The Woodlands, Texas sued in the Southern District of Indiana alleging that 24 Doe defendants infringed the copyright of the motion picture “Dallas Buyers Club,” which has been registered with the U.S. Copyright Office.

The movie in question, Dallas Buyers Club, stars Matthew McConaughey as an AIDS patient who smuggled unapproved AIDS-treatment drugs into the United States during the 1980s for his own use and to distribute to others afflicted with AIDS. The movie was nominated for six Academy Awards and won three. Matthew McConaughey and Jared Leto also won Oscars for Best Actor and Best Supporting Actor, respectively, for their performances in the movie.

In this Indiana copyright infringement lawsuit, filed by a copyright lawyer for Dallas Buyers Club, LLC, plaintiff asserts that the copyrighted movie was infringed by 24 as-yet unnamed individuals, who were sued as “Doe” defendants. It alleges that this copyright infringement took place using the “BitTorrent protocol,” which is different from the standard peer-to-peer protocol. Specifically, the BitTorrent protocol enables numerous computers, even those with low bandwidth, to exchange pieces of a computer file among themselves. Each computer that has downloaded a particular piece of a file then becomes a source from which other computers may then download that piece of the file. As a result, the entirety of a computer file may be disseminated across the Internet quickly without having to rely on a central source from which to download.

Plaintiff contends that the 24 defendants acted as part of a “collective enterprise” to infringe its work and that the acts constituting the infringement were “willful, intentional, and in disregard of and with indifference” to plaintiff’s intellectual property rights.

The court is asked to enter judgment for the following monetary and injunctive relief:

• for entry of permanent injunctions providing that each defendant shall be enjoined from directly or indirectly infringing plaintiff’s rights in the movie;
• for judgment that defendants have: a) willfully infringed plaintiff’s rights in its federally registered copyright pursuant to 17 U.S.C. §501; and b) otherwise injured the business reputation and business of plaintiff;
• for actual or statutory damages pursuant to 17 U.S.C. §504 in an amount to be determined at trial;
• for an Order of Impoundment under 17 U.S.C. §§503 and 509(a) impounding all infringing copies of the movie that are in defendants’ possession or under their control; and
• for attorneys’ fees, litigation expenses, including fees and costs of expert witnesses, and other costs of this action.

Practice Tip: Defendants who fail to appear run a significant risk of having a default judgment entered against them. There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent. In two separate cases, Judge William T. Lawrence ordered defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations. See here and here. However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

June 16, 2014

Appeals Court Disallows Mass Joinder in Copyright Infringement Litigation

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Court of Appeals for the District of Columbia handed copyright trolls a major defeat recently by removing one of their most powerful tactics: the ability to sue large groups of John Doe defendants together with minimal evidence.

The case, AF Holdings v. Does 1-1058, is one of the few mass copyright cases to reach an appellate court, and the first to look into fundamental procedural problems that have tilted the playing field firmly against the Doe Defendants. With this decision on the books, it appears likely that even more federal trial courts will disallow cookie-cutter lawsuits seeking cash payouts from dozens or even hundreds of Internet subscribers.

The appeal was brought by several internet service providers (Verizon, Comcast, AT&T and affiliates) with amicus support from copyright attorneys for the Electronic Frontier Foundation (“EFF”), the ACLU, the ACLU of the Nation’s Capital, Public Citizen, and Public Knowledge.

June 11, 2014

Indiana Copyright Litigation: Malibu Media Sues Nine Additional “John Does” Asserting Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Nine copyright infringement lawsuits have been filed in the Southern District of Indiana on behalf of Malibu Media, LLC of Los Angeles, California. The lawsuits assert that nine separate unidentified defendants, each identified with only “John Doe” and an internet protocol address, infringed Malibu Media’s copyrighted works.

Frequent copyright litigator Paul Nicoletti has filed another set of copyright infringement complaints in Indiana federal court. The complaints, filed on behalf of adult-content purveyor Malibu Media, assert infringement of the company’s intellectual property. In this latest round, Malibu Media submitted nine new and nearly identical lawsuits for adjudication in the Southern District of Indiana against nine anonymous John Doe defendants. The defendants allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material. As with all of Malibu Media’s complaints, the copyrights-in-suit cover pornographic videos.

Malibu Media seeks a permanent injunction barring the defendants from engaging in infringing activities; an order by the court that infringing materials be removed from all computers of each defendant; a separate award of statutory damages for each work found to have been infringed and reasonable attorneys’ fees and costs.

Practice Tip: Defendants who fail to appear run a significant risk of having a default judgment entered against them. There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent. In two separate cases, Judge William T. Lawrence ordered defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations. See here and here. However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

May 27, 2014

Indiana Copyright Litigation: Fourteen New Lawsuits Asserting Copyright Infringement Filed by Malibu Media

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An intellectual property attorney has filed fourteen new copyright suits in the Southern District of Indiana on behalf of Malibu Media, LLC of Los Angeles, California alleging that 14 separate unidentified defendants, listed as “John Doe” defendants, infringed Malibu Media’s copyrighted works.

In this latest batch of lawsuits filed by copyright lawyer Paul Nicoletti, the 14 defendants, all sued under the name “John Doe” until they can be identified pursuant to a court subpoena and named, are listed as “persistent online infringer[s]” of Malibu Media’s copyrighted works. The nearly identical copyright infringement lawsuits contend that the defendants used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material.

The defendants accused of infringing the fewest copyrighted works are accused of infringing 16 of Malibu Media’s copyrights. Malibu Media contends that two defendants, however, have infringed more than 40 of its copyrighted works.

Malibu Media seeks a permanent injunction barring the defendants from engaging in infringing activities; an order by the court to remove infringing materials from all computers of each defendant; an award of statutory damages for each infringed work and reasonable attorneys’ fees and costs.

Practice Tip #1:

Copyright trolling, also known as “porn trolling” when the plaintiff owns copyrights to pornographic material, has changed in the years since the practice began. Most early lawsuits were filed against tens, hundreds or even in excess of a thousand anonymous defendants. When judges such as District Judge Otis Wright made it clear that this misjoinder would not be permitted, porn trolls began filing multiple lawsuits claiming copyright infringement against single defendants.

Porn trolls also responded to this change in the judicial landscape by adding a new exhibit, “Exhibit C,” with each filing. Exhibit B to each complaint was a legally relevant listing of the Malibu Media copyrights that were allegedly infringed. However, Exhibit C listed other pornographic material – material not owned by Malibu Media – allegedly downloaded by the internet protocol address of the accused.

While the titles of Malibu Media’s copyrighted works are often fairly innocuous – “Almost Famous,” “Blonde Ambition” and “LA Plans” are among their works – the titles listed in Exhibit C were decidedly not. In response these and other Malibu Media copyright litigation tactics, one federal judge, District Judge William Conley, said, “[t]hese Internet copyright infringement cases … give off an air of extortion.” He sanctioned Malibu Media’s counsel under Rule 11 and ordered a fine of $2,200.

Practice Tip #2: Mass misjoinder in copyright cases has also been flagged as impermissible in other, non-pornography, cases that assert copyright infringement against multiple defendants. In one recent Indiana copyright lawsuit, Magistrate Judge Denise K. LaRue, writing for the Southern District of Indiana, severed all but one defendant from the copyright infringement complaint of Richard Bell, an Indiana copyright attorney. The court also ordered Bell to pay separate filing fees for each new cause of action.

May 22, 2014

Indiana Copyright Lawsuit – Malibu Media Alleges Infringement of Thirty Copyrighted Works

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Malibu Media, LLC d/b/a X-Art.com of Los Angeles, California has sued alleging that an unidentified Indiana resident, “John Doe,” engaged in BitTorrent transactions associated with 241 files owned by Malibu Media between October 6, 2013 and May 2, 2014. Malibu Media asserts that these alleged acts of copyright infringement took place in the Southern District of Indiana.

The “John Doe” defendant in this copyright infringement lawsuit allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material. Malibu Media has also claimed that the defendant is a “persistent online infringer.” It claims that “John Doe” has infringed 30 separate copyrighted works owned by Malibu Media. Of these 30 works, 27 have been registered by the U.S. Copyright Office. Three registrations remain pending.

Malibu Media seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of the defendant; an award of statutory damages pursuant to 17 U.S.C. § 504(a) and (c) and reasonable attorneys’ fees and costs.

Practice Tip #1: In its complaint, filed by a copyright lawyer, Malibu Media alleges that the infringing transfer and copying of this copyrighted work was accomplished by the Defendant using BitTorrent, a peer-to-peer file-sharing protocol. Plaintiff states that the BitTorrent protocol makes even small computers with low bandwidth capable of participating in large data transfers for copying large files such as movies.

Practice Tip #2: Under 17 U.S.C. § 504(c)(1), a copyright owner may elect actual or statutory damages. Statutory damages range from a sum not less than $750 to not more than $30,000 per infringed work. The determination of the exact amount is left to the discretion of the court. The docket report shows that, in this case, Malibu Media is demanding $150,000.

May 19, 2014

Indiana Copyright Litigation – Another John Doe Sued by Malibu Media on Allegations of Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Malibu Media, LLC d/b/a X-Art.com of Los Angeles, California has sued alleging that an unidentified Indiana resident, “John Doe,” infringed numerous of its copyrighted works in the Southern District of Indiana between July 2012 and May 2014.

The “John Doe” defendant in this copyright infringement lawsuit allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material. Malibu Media has also claimed that the defendant is a “persistent online infringer.” It claims that “John Doe” has infringed 43 separate copyrighted works owned by Malibu Media. Of these 43 works, 42 have been registered by the U.S. Copyright Office. One registration remains pending.

Malibu Media seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of the defendant; an award of statutory damages pursuant to 17 U.S.C. § 504(a) and (c) and reasonable attorneys’ fees and costs.

Practice Tip #1: The BitTorrent protocol is a decentralized method that allows users to distribute data via the Internet, and has become an extremely popular method for unlawful copying, reproducing and distributing files in violation of the copyright laws. While the copyright infringements committed with BitTorrent once consisted mostly of music copyright violations, the adult entertainment industry has increasingly been filing suit against infringers who have used BitTorrent-based technology.

Practice Tip #2: Malibu Media, LLC is represented by Paul Nicoletti, one of the country’s most notorious “copyright troll” attorneys. In addition to filing suits on behalf of Malibu Media, LLC, he has also sued hundreds of defendants on behalf of copyright trolls Patrick Collins, Inc. and TCYK, LLC. (Search for these company names on this site to find articles about those other suits, or visit http://fightcopyrighttrolls.com/or www.dietrolldie.com.)

Practice Tip #3: Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

May 15, 2014

Indiana Copyright Litigation – Malibu Media Sues Alleging Infringement of 43 Copyrighted Works

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A copyright attorney for Malibu Media, LLC of Los Angeles, California d/b/a X-Art.com filed a copyright infringement lawsuit in the Southern District of Indiana alleging that an anonymous defendant (“John Doe”), asserted to be an Indiana resident, infringed 43 copyrighted works to which Malibu Media claims ownership.

Malibu Media contends that infringement by John Doe of the works, which include multiple pornographic movies, began on September 14, 2013. Currently, the defendant is identifiable by Malibu Media only by his or her internet protocol address (“IP address”). Malibu Media asserts that it used “geolocation” technology to ensure that the anonymous defendant’s alleged acts of copyright infringement occurred using an IP address that could be traced to a physical address within Indiana.

Malibu Media has accused the defendant of a single count of “Direct Infringement” encompassing all 43 copyrighted works. It seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of the defendant; an award of statutory damages pursuant to 17 U.S.C. § 504(a) and (c) and reasonable attorneys’ fees and costs.

Practice Tip:

It has been estimated that over 200,000 users of various peer-to-peer file-sharing protocols, usually users of BitTorrent, have been sued for copyright infringement. Instead of a thorough investigation, followed by a lawsuit, these plaintiffs — usually holders of a copyright to a work of adult entertainment — gather the IP addresses of many potential/presumed infringers and then sue multiple defendants.

These suits used to involve tens, hundreds or even thousands of defendants joined in a single suit. The problem of these cases of mass joinder of largely unrelated defendants became sufficiently widespread that it garnered attention from mainstream press (see, e.g., here).

The problem also caused considerable strain on the federal judiciary, leading one judge to deny joinder as serving no legitimate purpose in such cases once IPSs have been put on notice to preserve identifying information for particular IP addresses and to opine that it is “difficult to even imagine the extraordinary amount of time federal judges have spent on these cases.” Many other courts also denied joinder, often on the theory that, while doing so does not solve the problem of trolling for copyright damages within the federal judiciary it, at least, makes pursuing such abusive litigation much less profitable.

As a result of such rulings, copyright attorneys such as Paul Nicoletti have modified their practices and now have shifted to filing more single-defendant copyright infringement complaints. While this may solve the earlier problem of mass misjoinder, many other contentious issues inherent in copyright trolling – including proper identification of the alleged infringer – remain.