Malibu Media subpoena results in losing case in Chicago, Illinois. Big win for Defendant.
Recent Malibu Media pornography movie lawsuits have been filed in Texas, Pennsylvania (Philadelphia), Michigan, Washington D.C. and New York. However, this blog deals with a case filed in the Northern District of Illinois involving a “Doe Defendant” that decided to fight back against one of the most prolific filers of copyright infringement cases in the history of the United States.
Law firms you may be dealing with
Here is a list of a few recent law firms who may have filed the lawsuit and issued a subpoena to your ISP such as Comcast or Cox.
- Lowenberg Law Firm (Houston, Texas)
- Flynn, Wirkus, Young (Philadelphia, Pennsylvania)
- Sheikh Legal Services PLLC (Mount Clemens, Michigan)
- The James Law Firm PPLC (New York)
- Law Offices of Jon A. Hoppe (Washington D.C.)
Malibu Media, LLC v. John Doe internet subscriber Case #1:13-cv-06312
In this case the Plaintiff porn company filed a lawsuit against a defendant accusing him of illegally downloading 24 movies involving Defendants copyright protected sex acts. A motion for early discovery was filed, and the Court granted Plaintiff the right to serve a subpoena on the defendants ISP.
The ISP returned information about the Defendant, and discovery took place including depositions. The “subscriber” to the internet account (identified by his “IP Address”) vehemently denied downloading any movies. Plaintiff and Defendant both hired experts.
Cross Motions for Summary Judgement
Under F.R.C.P Rule 56, a party can try to end the case by seeking summary judgement against the other. The court will grant the motion if there is “no triable issue of fact” such that one party is entitled to judgement “as a matter of law.” After settlement discussions proved unsuccessful (Plaintiff apparently was seeking $18,000 or $750 per movie. Defendant refused to want to pay this amount) both parties filed a summary judgement motion. The matter was heard by a “Magistrate Judge” (Hon. Geraldine Brown) who determined that Plaintiff was not able to prove that Defendant downloaded any copyrighted content, and thus was not able to prove direct infringement, or that Defendant otherwise had access to the .torrent files Plaintiff claimed was infringing. This resulted in a pretty huge win for the Defendant, although the fight was not a short or easy one.
What do do when you get a subpoena letter from your ISP regarding Malibu movies
Here are a few general things to consider if you are faced with a Malibu lawsuit:
- Do not talk to anyone – these could be witnesses used against you.
- Do not delete files, or destroy computers, laptops, servers or other items that contain evidence (if you are adamant you did not download the movies, having proof of everything being in tact will be important to your case).
- Contact a Malibu defense attorney to review your case. We can help you decide whether or not to ignore the letter, or allow a default judgement to be taken in the lawsuit. We can also help you evaluate potential defenses, and mitigating factors (such as financial hardships) and possible settlement amounts.
We offer a free initial case review by calling the number below
Are there any defenses to adult pornography file sharing cases?
Yes, there are. Here are a few defenses that you might be able to raise to either prevail in the case, or to help you mitigate settlement penalties:
- You did not download the movie;
- You know who did download the movie and are willing to provide their name;
- Some intellectual property lawyers will consider prior military experience to reduce the penalties;
- Other torrent law firms will look at whether or not the movie titles downloaded appear to be that of kids (which they may be more forgiving) or whether the movies appear to be “testosterone driven” as one lawyer from Hawaii put it, in which case they may not be as lenient in regard to settlement;
- .Torrent packets were NOT downloaded (i.e. It is not possible to ascertain that the packet downloaded contained any copyright protected content – normally the packets need to be assembled so that the movie can be viewed). If the “digital handshake” was not complete, possibly no copyrighted content was downloaded;
- Other defenses that might apply (Unclean Hands – ex. Malibu’ copyright infringement business model encourages these downloads so they can make profits). We have also seen allegations that Plaintiff, a Los Angeles production company, failed to properly register its business in some areas;
- There might also be jurisdictional issues (such as you live in New York and are being sued in Texas). Perhaps the court lacks subject matter jurisdiction;
- There could also be a laches defense (ex. A software, music, or movie company sits around “racking up” damages before filing a lawsuit. If they know you are infringing their movies, they should tell you after you download the first movie, and not wait until you download 20 of their titles for example. This is one argument to consider;
- Three year copyright infringement statute of limitations;
- Malibu (or other film company such as London Has Fallen, IT, Cell Film, or Mechanic Resurrection) has not registered the copyright before filing lawsuit. We have seen occasion where a film claimed to be copyrighted was not;
- There was one case where two attorneys were accused of uploading the movies to a fake account to entice other people to download the movies. A sort of “entrapment” type of defense;
These are some of the main things to consider, but this is not an exclusive list.
Does it cost money to litigate to prove your innocent?
In most cases it will incur litigation fees. These are hard types of cases for Defense Attorneys to take on a “contingency fee” basis, mainly because even if you win the case at MSJ stage, or at trial, you still only have a right to REQUEST ATTORNEY FEES, and the judge may either grant or deny that motion.
This is a key fact why some software trolls are copyright bullies are allowed to push people around in the settlement process and sometimes force innocent people into “shame settlements” not wanting to be publicly associated with illegal p2p (PEER-TO-PEER) file sharing of adult porno titles, some of the names which are pretty embarrassing, shocking and offensive to some.
Do I need to hire a copyright defense lawyer?
No. Like most other things, you can try to negotiate the case yourself, but many things can go wrong with this approach, the most important being that you admit to liability and get stuck facing a demand for up to $150,000 for willfully infringed movie titles. Hey, don’t blame me, that’s what the U.S. Copyright laws and case law allow for.
There was also another case from Arizona where the Doe Defendant decided not to hire an IP attorney and the case ended up in a default judgement for approximately $20,000. These judgments, once obtained, can be effective for a number of years, so even if you are not making money now, if you end up with a nice paying job in the future, for example as an engineer, architect, doctor, lawyer, teacher, etc., you could find that Malibu or other company can seek to “garnish” your wages. Obviously your employer may find out about this, and it could be embarrassing to explain.
In other cases involving tenants and leasees, the rental contract you sign may have a clause mandating that you will not violate any state or federal laws. Obviously if you are find liable for copyright infringement (which could also lead to criminal copyright liability, for example where a ISP subscriber has a “move library” consisting of hundreds of illegally downloaded films), this could be seen as a breach of the lease, and if you are currently having problems with the landlord, this could potentially result in creating grounds to evict you from your apartment, condo, town home or house. Not a fun result.
Watch Attorney Steve explain the Arizona Default Judgement in a London Has Fallen case
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What do these Malibu Media cases end up settling for?
While there is no one size fits all approach to settling these cases, we have seen that certain factors in BitTorrent cases seem to get consideration when deciding what to settle the case for. These items may include:
- How many movie titles were downloaded;
- Did Defendant come forward and take responsibility or was Defendant required to spend large sums of money serving subpoena and litigating the case;
- Is there a financial hardship (ex. Household income for husband, wife, spouse borders at or below the poverty level). For example, your bank statements show you have $500 as an average running balance, or your w-2 pay stubs show you only make $1,000 per month. In these types of cases, you may need a “financial hardship declaration” to try to get the settlement amount reduced;
- Is there a legitimate “unsecured wifi” defense or are there factors that militate against finding a plausible defense? For example, if the wireless router comes setup with with the default in the “secured’ position, you might find it more difficult to legitimately claim you “unsecured’ your router and somebody else must have hijacked your internet connection and downloaded the movie;
- Did the internet subscriber get DMCA copyright notices from their ISP (for example, if you are a Cox, Verizon, AT&T or Comcast subscriber, did you get one or more ‘INFRINGEMENT NOTICES” that would have flagged you and let you know you were doing something illegal? Note, sometimes they will argue no copyright alerts need to be sent, and some ISP’s may no longer be participating in the “copyright alert system.”
Other times, lawyers have told me that the ISP terms of service state that the subscriber “agrees to be liable for conduct” occurring on the internet connection. A good BitTorrent defense firm can take a look at this issue.
Contact a Movie Piracy Defense Firm
While a lot of this may sound confusing, we can help you sort through the mess. If you received a letter or subpoena from MALIBU or another movie, music, or software company (for example Autodesk or the Business Software Alliance, we offer a free no cost assessment of your case by calling (877) 276-5084. We can help you weigh your options and determine a course of strategy. We handle federal copyright piracy cases nationwide, subject to local court rules.
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