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All Malibu Media Subpoenas In Eastern District NY Put On Hold
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.
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.
Thank you, Bradley Manning, Edward Snowden and so many others, for courageously defending humanity, my freedom and more!
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 wish. This fee will eventually be so high that they will be better off releasing it into the public domain.
2) Copyright law must be enforced, and seriously. It must have sane penalties though. Simple infringement for personal use should be a misdemeanor. However, sites should be forced to police themselves better, and there should be more police effort to stop infringement.
Right now copyright law is useless because it is ineffective and ridiculous. If copyright law is sane and actually risky for people to break while still aiding the public domain, it will be a much better solution.
All already "aggreed" paid penalties in it, and return them to the falsly accused people if bogus.
I know you're trolling, but I'll bite anyway.
All the perceived negative effects of porn stem from sex and nudity having been given a historic stigma by the church, for which your kind is to blame entirely. There is nothing evil or harmful in natural sexual processes whatsoever, nor in the naked body, but just the opposite: they provide happiness and enjoyment, and as a side effect produce offspring which was nature's motive for making sex enjoyable in the first place.
The above doesn't excuse non-consensual or violent porn of any kind, nor sexual servitude under duress, let alone attacks on children. Those are all simply criminal abuse, and should have no place in a civilized society. That's not because of religious doctrine but because abuse and duress are a violation of people's personal freedom and safety in a supportive society.
Religion has programmed you into seeing good things as evil without any defensible justification other than historic dictats. You really ought to think about it yourself a little more deeply and logically, instead of blindly adopting what you're told to think. It doesn't stand up to scrutiny.
Somehow I find it unsurprising that pornographers and right wing nutjobs try and use the same scam.
Why is Snark Required?
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.
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.
The judge told the porn producer to get fucked.
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.
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.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
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, just making a copy does not particularly harm the copyright holder. If you make many copies and distribute them in competition then that is a more serious event. The penalties for distribution of copyrighted materials are consequently greater.
It is also easier to catch and prosecute a distributor. When Paul uses the office copier to run off a copy of a book so he doesn't have to buy it -- how do you catch him? But when Peter mass produces the book and sells it in a store front -- well, that's easy.
Consequently, most of the attention revolves around questions of distribution. Simple reproduction is illegal, but is a lesser crime that is difficult to detect and generally less prosecutable.
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.
Not entirely correct. US federal law does in fact explicitly provide a right to make copies of copyrighted content (in whole or in part) under certain circumstances. It's call Fair Use (Title 17 U.S. Code Section 107).
This comes about because the 9th and 10th Amendment limit what the federal government can do, by providing for unspecified rights "retained by the people" (9th Amendment) and "reserved to the people" (10th Amendment). James Madison made the Bill of Rights open-ended in this fashion because the anti-federalists pointed out that any finite list of rights would turn out to be incomplete. It was such an important point that he made sure it appeared twice in the Bill of Rights, the only issue to do so.
In a free country, any form of reasonable conduct is necessarily protected conduct, and thus in the USA reasonable conduct becomes a right protected by the 9th and 10th Amendments. The right to engage in reasonable conduct is a right retained by the people, and reserved to them. Making reasonable copies, as a form of reasonable conduct, is thus a protected right.
Any legal professional making a statement to the contrary would be engaged in unethical practice of law, since giving the legal system the ability to interfere with reasonable conduct creates an artificial demand for the services of legal professionals. Thus, as the right to ethical practice of law also comes into play under the 9th and 10th Amendments, the right to make reasonable copies is protected on multiple levels by these Amendments.
Unfortunately, the rules for determining when something is fair use (or when it is reasonable to copy something) are not particularly clear. There is some case law, but it isn't governing because ultimately it's up to the people (by definition) to decide what rights are "retained by" or "reserved to" them. No court, not even the Supreme Court, has the final say here (and if they tried to claim that they did, they would be in violation of the oaths they swear to uphold the Bill of Rights, oaths that are preconditions for holding those positions; further, creating or sustaining contradictions in the legal system always involves unethical practice of law).
In practice, like many aspects of the law, the system is confusing and arguably contradictory, which has many negative consequences for society. This creates problems by allowing lawyers without integrity to abuse the legal system. It's not just the Malibu lawyers who are doing this, but also many others, and the abuses that happen are not limited to stealing a portion of people's lives (not very different from kidnapping them at gunpoint, when one thinks about it) by making invalid subpoenas and copyright lawsuits.
Aaron Swartz, for example, died because of the unwillingness of a federal prosecutor to act ethically and in accordance of his oath to uphold the Bill of Rights: whether or not he did anything wrong in making copies as he did, the prosecutor clearly did not take 9th and 10th Amendment issues into consideration and thus violated his oath to uphold the Bill of Rights.
Unfortunately, misconduct on the part of legal professionals is quite common. As a class in society, they are in a position of ethical conflict of interest with respect to the nature, scope, and form of the law, and with respect to how it is enforced. This ethical conflict of interest has not been handled well, historically speaking.