Stipulated preservation order in Malibu v Doe 16 cv 1325 SDNY

After some negotiation, the parties entered into a stipulated preservation order in Malibu Media v. Doe, a Southern District of New York case:
January 27, 2017, Stipulated Preservation Order, Hon. Jesse M. Furman, District Judge

Judge Locke denies motion to quash in Malibu Media v Doe, stay lifted

In Malibu Media v. Doe, EDNY 15-3504, Judge Locke has denied the defendant's motion to quash, and lifted the stay on all of the EDNY Malibu Media cases, which had all been consolidated.

The Court accepted the representations of plaintiff's expert, a Michael Patzer of a company called Excipio, that Malibu relies on "direct detection" rather than "indirect detection", and that it is "not possible" for there to be misidentification.

Memorandum Decision of Magistrate Judge Locke denying motion to quash

Second Circuit rules for Vimeo on DMCA issues in Capitol Records v Vimeo

The US Court of Appeals for the Second Circuit has overturned those parts of the District Court's rulings which were in favor of the plaintiff record companies in Capitol Records v. Vimeo.

The Court decided three major issues under the Digital Millenium Copyright Act.

1. It totally rejected the 2011 report of the US Copyright Office, upon which the District Court had relied, which had concluded that pre-1972 recordings are not subject to the DMCA. The Court went into great detail as to the Copyright Office's errors in interpreting the Copyright Act.

2. It overturned the District Court's ruling that wherever the plaintiff could show that a Vimeo employee had at least partially viewed the infringing video, there was a factual issue on the subject of "red flag knowledge", therefore precluding summary judgment. The Court held that this was not itself a sufficient basis to require a trial, and remanded this issue to the District Court to reconsider it.

3. The Court affirmed the District Court's rejection of plaintiffs' argument that Vimeo had adopted a "policy" of willful blindness, reiterating the principle that willful blindness, like actual knowledge, must relate to specific infringements. The court also noted that plaintiff's evidence that such a "policy" had been adopted, consisting of a "handful of sporadic instances", did not rise to the level of showing such a policy.

Decision of US Court of Appeals, 2nd Circuit, June 16, 2016

Commentary & discussion:

Slashdot
Ars Technica
Deep Links Blog (Electronic Frontier Foundation)

All EDNY subpoenas stayed by Judge Locke, due to "serious questions" raised by motion to quash

A motion to quash was made by one of the many John Doe defendants in the Eastern District of New York Malibu Media cases.

The defendant was represented by Chejin Park, Esq., of Flushing.

Due to the "serious questions as to whether good cause exists in these actions to permit ... expedited pre-answer discovery", the Court, by Magistrate Judge Steven I. Locke, before whom all of the Eastern District cases are consolidated, decided to stay all pre-answer discovery until his determination of the motion to quash.

Motion to quash
October 6, 2015, Order of Magistrate Judge Steven I. Locke

Commentary & discussion:

FightCopyTrolls
Slashdot

Judge Hellerstein denies Malibu Media discovery motion

In a recent decision in the Southern District of New York in Manhattan, in Malibu Media v. Doe, 15 CV 4369 AKH, Judge Alvin K. Hellerstein has denied Malibu Media's ex parte motion for permission to serve a subpoena on the internet service provider.


July 6, 2015, Decision of Hon. Alvin K. Hellerstein, denying ex parte motion for discovery

Judge Hellerstein reasoned as follows:

First, it is doubtful whether Malibu has in fact established a prima facie claim here. A prima facie copyright infringement claim consists of two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc. 499 U.S. 3400, 361 (1991). As Judge Marrero observed in Next Phase Distribution, Inc. v. John Does 1-27, 284 F.R.D. 165, 171 (S.D.N.Y. 2012), “if the Motion Picture is considered obscene, it may not be eligible for copyright protection.” Further, even if Malibu’s copyrights are valid, Malibu has not established a violation by the individual to whom the relevant IP address is registered. As Judge Oetken explains,

[t]he fact that a copyrighted work was illegally downloaded from a certain IP address does not necessarily mean that the owner of that IP address was the infringer. Indeed, the true infringer could just as easily be a third party who had access to the internet connection, such as a son or daughter, houseguest, neighbor, or customer of a business offering internet connection.

Patrick Collin[s], Inc. v. Does 1-6, No. 12-cv-2964, 2012 WL 2001957, at *1 (S.D.N.Y. June 1, 2012) (internal citations omitted); see also In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 84 (E.D.N.Y. 2012) (“[T]he assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time.”); Digital Sin, Inc. v. John Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (Judge Nathan finding that approximately 30% of John Does identified by their internet service providers are not the individuals who actually downloaded the allegedly infringing films). The risk of misidentification is great in a world with ubiquitous Wi-Fi, and given courts’ concerns that these sorts of allegations - especially by this plaintiff - are likely to coerce even innocent defendants into settling, the risk of misidentification is important to protect against.

And even if Plaintiff could definitively trace the BitTorrent activity in question to the IP-registrant, Malibu conspicuously fails to present any evidence that John Doe either uploaded, downloaded, or even possessed a complete copyrighted video file. (See Compl. i1 24 ("IPP International UG downloaded from Defendant one or more bits of each file hash listed on Exhibit A.") (emphasis added); Fieser Deel. i115 ("Our software downloaded one or more bits of each file hash listed on Exhibit A from the IP address referenced on Exhibit A.")). Another district court has noted that

[i]ndividual BitTorrent file pieces are worthless ... If it is the case that a Doe Defendant logged onto the BitTorrent swarm, downloaded and then uploaded a single piece to the IPP server, and then logged off, all he has done is transmit an unusable fragment of the copyrighted work. ... [T]he Court notes that Malibu's case is weak if all it can prove is that the Doe Defendants transmitted only part of all the BitT orrent pieces of the copyrighted work.

Malibu Media, LLC v. John Does 1-10, No. 12-cv-3623, 2012 WL 5382304, at *3 (C.D. Cal. June 27, 2012).

Finally, Plaintiffs assertion that there is no alternative means of obtaining the desired information is inadequate. The only support for it comes from the declaration of Patrick Paige who, as Magistrate Judge Fox found in a different case, lacks personal knowledge of the methodology used by ISPs to match the IP address with its registrant. Malibu Media, LLC v. John Doe subscriber assigned IP address 207.38.208.137, 15-cv-1883, ECF Doc. No. 16 (Apr. 10, 2015). The Paige declaration that Judge Fox found deficient nearly three months ago is identical to the Paige declaration submitted in support of this motion. It fares no better this time.

UMG v Grooveshark settled. No money judgment against individual defendants

UMG v. Escape Media, UMG's case against Grooveshark, has been settled just prior to trial.

Under the terms of the settlement a judgment for $50,000,000.00 will be entered against the corporation only, and the corporation will shut down its operations.

No money judgment is being entered against the individual defendants.

Stipulation and Consent Judgment and Permanent Injunction Entered May 1, 2015

Parameters set for statutory damages trial in UMG v Grooveshark

In UMG v. Escape Media, UMG's case against the Grooveshark founders, the judge has rendered a decision setting some of the parameters for the statutory damages trial scheduled to begin next Monday. The jury will be instructed that the maximum statutory damages is $150,000, not $30,000, per infringed work, due to the fact that the infringements were willful, but the parties will be able to introduce evidence on the degree of willfulness. Since there are 4907 works, that means the minimum damages that can be awarded is $3,680,250.00, and the maximum could be $736,050,000.00.

April 23, 2015, Decision, Ruling on In Limine Motions

Commentary & discussion:

"Grooveshark Faces a $736,050,000.00 Hammer…" (Digital Music News)
"Grooveshark Could be Fined $730 Million for Universal Music Group Lawsuit Damages" (Music Times)

Capitol Records has spent over $12 million in attorneys fees in Capitol v. MP3Tunes

In Capitol Records v. MP3Tunes, a recent decision partially granting plaintiff's attorneys fees motion, indicated that plaintiff has spent over $12 million in attorneys fees... so far.

April 3, 2015, Decision

[Ed. note. Is it just me, or don't you have to wonder where they got that money from?]

Arista v Grooveshark trial set to begin April 27th

A trial date has been set in one of the Grooveshark cases, Arista v. Escape Media. The trial will begin Monday, April 27th, in the courtroom of Judge Thomas P. Griesa, room 26B, at the federal courthouse, 500 Pearl Street, New York, New York

April 1, 2015, Order setting April 27th trial date

Aereo files for bankruptcy

Well, it finally happened; Aereo has given up the ghost and filed for bankruptcy. It will be interesting to see whether the the content cartel will be satisfied at having put the company out of business, or will instead look for blood.

March 27, 2015, Order, WNET v. Aereo