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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
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.
Judge Hellerstein is on a roll.
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.
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
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'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.
I'm a consultant - I convert gibberish into cash-flow.
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 the hotspot or a registered guest. So unless the country mandates IPv6 and every one gets their own block at birth .. and IP address will never guarantee the person using it.
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.
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
The number was probably zero. It is now likely dozens. Good job. ;)
"So long and thanks for all the fish."