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Judge Calls Malibu Media "Troll", Denies Subpoena
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.
"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.
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.
"File to fit, pound to insert, paint to match" - Aircraft Maintenance 101
>(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 lawyer-rodeo. I guess you're whining that you *want* to snub Malibu for dick maneuvers.
>(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
Thank God. Now set some fucking precedent. IP != ID. Vaguely incriminating circumstances lead to a suspect at best, and certainly not a verdict. By all means, snub them.
> (f) Malibu's claim that there is no other practical way for it to target infringement
That isn't a practical way either. If I don't have a practical way to catch my father's killer, that doesn't validate voodoo and crystal balls, it means I need to find new ways or fucking suck it up bitch you got squat. Snub 'em.
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.
Ray Beckerman +5 Insightful
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.
Ray Beckerman +5 Insightful