Malibu Media, LLC v. Doe

Filing 22

ORDER TO SHOW CAUSE, Motions terminated: 20 Order to Show Cause Hearing set for 5/18/2017 11:00 AM. Show Cause Response due by 5/16/2017 AT NOON. Signed by Judge Alsup on 5/10/2017. (whalc1, COURT STAFF) (Filed on 5/10/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 MALIBU MEDIA, LLC, 11 For the Northern District of California United States District Court 10 12 13 14 No. C 16-05975 WHA Plaintiff, v. ORDER TO SHOW CAUSE JOHN DOE subscriber assigned IP Address, Defendant. 15 / 16 In October 2016, plaintiff Malibu Media, LLC, filed fifty-seven copyright infringement 17 18 actions, each against a different John Doe defendant identified only by his or her IP address. 19 Each of these actions accused the respective defendant of violating Malibu Media’s copyrights 20 using BitTorrent, a file-transfer protocol often used for piracy, to copy and distribute 21 pornographic videos produced by Malibu Media and offered on its website. The fifty-seven actions filed in October 2016 constituted the fourth wave in a monsoon 22 23 of two-hundred thirty-five actions that Malibu Media has filed in this district in the past 24 eighteen months. In September 2015, Chief Judge Phyllis Hamilton ordered all Malibu Media 25 copyright infringement actions to be assigned to the undersigned judge going forward from that 26 date. 27 28 By virtue of Malibu Media’s methodology for detecting piracy via BitTorrent, it could not identify the alleged infringer by name. Rather, it could only learn the alleged infringer’s IP address, which is a numerical identifier assigned by an Internet service provider to a given 1 Internet access point. Accordingly, Malibu Media generally sought leave to conduct early 2 discovery in order to discern the alleged infringer’s true identity, specifically by serving third- 3 party subpoenas on the Internet service provider that Malibu Media believed assigned the 4 accused IP address. 5 Since IP addresses are not assigned geographically, Malibu Media needed to use 6 geolocation technology that mapped each accused IP address to a region in order to determine 7 that jurisdiction and venue were proper before filing a lawsuit. (Malibu Media’s litigation 8 campaign pervades the federal courts throughout the nation, not just this district.) 9 In this particular case, as in each case filed in this district in October 2016, counsel for Malibu Media averred in a sworn declaration that Malibu Media used a database called 11 For the Northern District of California United States District Court 10 “Maxmind” to map our defendant’s IP address to a particular district in order to determine the 12 proper venue for this action (Dkt. No. 7-6). The declaration parroted several hearsay statements 13 about the accuracy of Maxmind from its website, but counsel also averred that in their 14 experience in California “Maxmind has always been 100% accurate to the state level, 100% 15 accurate at identifying the ISP and has predicted the correct district 146 out of 147 times” (id. 16 ¶ 15). 17 In each of those actions, an order denied Malibu Media’s request to serve a third-party 18 subpoena because counsel’s representations about their personal experience with Maxmind 19 failed to account for dozens of cases filed in this district and the hearsay from Maxmind’s 20 website could not be considered (Dkt. No. 8). Malibu Media filed subsequent motions 21 accounting for every case filed in this district (many of which were dismissed before Malibu 22 Media learned the defendant’s identity), and an order allowed Malibu Media to serve third-party 23 subpoenas based on the more complete record. 24 Malibu Media has now received responses from each defendant’s Internet providers, and 25 it has voluntarily dismissed without prejudice thirty-five of the fifty-seven actions filed in 26 October 2016. No explanation for the voluntary dismissal has been given. 27 28 As Judge Otis Wright stated in Malibu Media, LLC v. John Does 1 through 10, 12-3632, 2012 WL 53832304, at *3–4 (C.D. Cal. June 27, 2012): 2 1 The Court is familiar with lawsuits like this one. These lawsuits run a common theme: plaintiff owns a copyright to a pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; because of embarrassment, many Does will send back a nuisance-value check to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars. Rarely do these cases reach the merits. 2 3 4 5 6 The federal courts are not cogs in a plaintiff’s copyrightenforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement — making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it. 7 8 9 11 Although Malibu Media now files individual cases against each defendant in this district For the Northern District of California United States District Court 10 12 (rather than one mass lawsuit), its practices evidently remain the same as those Judge Wright 13 described. 14 Indeed, the undersigned judge has previously characterized the typical allegations in 15 Malibu Media’s complaint as follows: 16 17 18 19 20 21 22 To be clear, this order only holds that Malibu Media has met the low standard of plausibility. Evidence that a defendant copied or distributed only a single piece of a video is weak evidence that the defendant copied the whole file (especially given the complexity of the circumstances of Malibu Media’s collection of that evidence). Registration of a video with the Copyright Office is only prima facie evidence of the copyrightability of that work. Moreover, the mere fact that an individual is the subscriber for a particular IP address is weak evidence that he, rather than a third party, actually committed the alleged infringement even if the alleged infringement occurred habitually. Malibu Media faces significant hurdles when it comes to proving its case on the merits, but it has met its burden at the Rule 12 stage. 23 In re Malibu Media Copy. Infringement Litig., No. 15-04170, 2016 WL 926906, at *4 24 (N.D. Cal. Mar. 11, 2016). 25 Malibu Media’s voluntary dismissal without prejudice of groups of its cases is not a new 26 pattern. A sizable portion of the cases from previous waves were terminated in the same way. 27 The practice has just become more frequent, and it follows skepticism by the undersigned judge 28 and others around the country about the accuracy of the Maxmind database. See Malibu Media, 3 1 LLC v. Doe, No. 16-01006, 2016 WL 3383830, at *3 (N.D. Cal. June 20, 2016) (collecting 2 cases); cf. Kashmir Hill, How an Internet Mapping Glitch Turned a Random Kansas Farm into 3 a Digital Hell, Fusion (Apr. 10, 2016, 10:00 A.M.), 4 mapping-glitch-turned-a-random-kansas-f-1793856052, (reporting a glitch in Maxmind’s 5 database that mapped more than six hundred million IP addresses to a single farm in Kansas). 6 Malibu Media now moves to continue the case management conference in this action, 7 which is currently set for May 18 at 11:00 a.m. because it only received defendant’s identifying 8 information on April 23, and has not yet had time to serve the summons and complaint, the 9 deadline for which is May 28. That request is DENIED. Instead, Malibu Media is hereby ordered to SHOW CAUSE at 11 For the Northern District of California United States District Court 10 that hearing, why the Court should not bar further Malibu Media cases in this district until the 12 accuracy of the geolocation technology is fully vetted. Malibu Media shall file a written 13 statement, with all factual assertions supported by declarations sworn under the penalty of 14 perjury by MAY 16 AT NOON. 15 To be clear, this order applies even if Malibu Media voluntarily dismisses this action. 16 17 IT IS SO ORDERED. 18 19 Dated: May 10, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 4

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