Malibu Media, LLC v. John Doe subscriber assigned IP address 24.196.90.111

Filing 6

ORDER sealing complaint and all attachments. Plaintiff must serve copy of this order on ISPs and shall not contact any Doe household which it has identified until the court grants permission to do so. Pursuant to Fed. R. Civ. P. 11(c)(3), not later than June 7, 2013, plaintiff shall show cause why Exhibit C to the complaint does not violate Rule 11(b). Signed by Magistrate Judge Stephen L. Crocker on 5/28/2013. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_______________________________________________________________________________________________________
ORDER
_______________________________________________________________________________________________________
MALIBU MEDIA LLC,
v.

Plaintiff,

13-cv-205-slc

JOHN DOE subscriber
assigned IP address 24.183.51.58
Defendant.
_________________________________
MALIBU MEDIA LLC,
Plaintiff,
v.

13-cv-207-slc

JOHN DOE subscriber
assigned IP address 71.13.250.95
Defendant.
_________________________________
MALIBU MEDIA LLC,
Plaintiff,
v.

13-cv-208-wmc

JOHN DOE subscriber
assigned IP address 71.87.100.125
Defendant.
_________________________________
MALIBU MEDIA LLC,
Plaintiff,
v.

13-cv-209-wmc

JOHN DOE subscriber
assigned IP address 98.125.121.178
Defendant.
________________________________
MALIBU MEDIA LLC,
Plaintiff,
v.

13-cv-315-wmc

JOHN DOE subscriber
assigned IP address 24.177.123.74
Defendant.
________________________________
MALIBU MEDIA, LLC,
Plaintiff,
v.

13-cv-317-slc

JOHN DOE subscriber
assigned IP address 24.183.92.115
Defendant.
_________________________________

MALIBU MEDIA, LLC,
Plaintiff,
v.

13-cv-318-bbc

JOHN DOE subscriber
assigned IP address 24.196.90.111
Defendant.
_________________________________
MALIBU MEDIA, LLC,
Plaintiff,
v.

13-cv-319-slc

JOHN DOE subscriber
assigned IP address 66.168.17.59
Defendant.
_________________________________
MALIBU MEDIA, LLC,
Plaintiff,
v.

13-cv-320-slc

JOHN DOE subscriber
assigned IP address 71.10.117.251
Defendant.
_________________________________
MALIBU MEDIA, LLC,
Plaintiff,
v.

13-cv-321-bbc

JOHN DOE subscriber
assigned IP address 71.90.19.244
Defendant.
_________________________________
MALIBU MEDIA LLC,
Plaintiff,
v.

13-cv-322-wmc

JOHN DOE subscriber
assigned IP address 97.86.116.18
Defendant.
_________________________________

Between March 25 and May 8, 2013, plaintiff Malibu Media, LLC (sometimes without
the comma), filed in this court the 11 lawsuits captioned above. All are identical in their claims
and formatting, alleging that the John Doe defendant located in this judicial district “is a
persistent online infringer of Plaintiff’s copyrights.” See, e.g., Complaint in 13-cv-322, dkt. 1 at
¶ 2. According to plaintiff, in each of these 11 lawsuits, the unknown defendant downloaded
from plaintiff bits of plaintiff’s copyrighted movies by participating in the BitTorrent file
distribution network. Each defendant is known to plaintiff only by a hash value; in each of these
cases, plaintiff has filed a motion for leave to take discovery before the Rule 26(f) conference in
order to learn the actual identity of the internet service subscriber associated with the hash value
known to plaintiff. See, e.g., Motion in 13-cv-322, dkt. 2. In three of plaintiff’s cases–namely 13cv-205, 208 & 209–this court already has granted these motions. There is no legal or procedural
impediment to granting the motions in the remaining cases. There is one equitable concern,
however.
This court is aware of criticism leveled against Malibu Media and its purported business
model of seeking quick settlements from identified John Does, leveraged by the implied (or
perhaps inferred) threat of exposing those defendants as people who enjoy watching “adult”
films, an activity that some people would prefer to keep confidential. See, e.g., Malibu Media, LLC
v. John Does 1 through 10, 2012 WL 5382304 at ** 3-4 (C.D. Cal. June 27, 2012); see also Malibu
Media, LLC v. John Does 1-14, ___ F.Supp.2d ___, 2013 WL 2285950 at *4 (N.D. Ind. May 22,
2013). But as noted by the court in Northern Indiana (quoting the court’s opinion in Patrick
Collins, Inc. v. John Does 1-9, 2012 WL 4321718 (C.D. Ill., Sept. 18, 2012), a copyright is a

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copyright, regardless of the material it covers, and early settlement demands are routine in federal
civil lawsuits. So far, no problem.
But then this court is left to wonder what purpose “Exhibit C” serves in each of these
lawsuits. In each of its complaints, plaintiff states that its forensic investigator, IPP Limited,
. . . has also engaged in enhanced surveillance of other digital
media files being distributed by Defendant. The results of this
more intensive surveillance are outlined in Exhibit C. The
Copyrights-in-Suit are solely limited to content owned by Plaintiff
as outlined in Exhibit B. Exhibit C is provided for evidentiary
purposes only.
Dkt. 1 at ¶ 23 in 13-cv-322.
This is nonsensical. Complaints are pleadings, not affidavits, so they have no “evidentiary
purpose.” Complaints are to provide “a short and plain statement of the claim showing that the
pleader is entitled to relief.” F.R. Civ. Pro. 8(a)(2). Here, in each case, plaintiff is explicitly
disavowing any claim based on Exhibit C. If it were to matter, under what rule of evidence
would Exhibit C be relevant at any stage of this lawsuit? Propensity evidence is forbidden by
F.R. Ev. 404(b)(1). Plaintiff makes no claim that Exhibit C is relevant under Rule 404(b)(2),
and if it did, then the weighing process of Rule 403 would militate forcefully toward excluding
this evidence. So what’s really going on here?
Even a cursory review of each lawsuit’s Exhibit C shows first, that it is always much, much
longer than the short list of titles that is the actual subject of plaintiff’s lawsuit, and second, that
among the innocuous titles listed in each Exhibit C (e.g., “Top Gear,” “Star Trek VI”) are
numerous “adult” programs, usually many more than the handful for which plaintiff is claiming
a copyright violation, and many with titles exponentially more lewd than any title claimed by

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plaintiff. Compare “Red Satin” with “[Bestiality] Young Blonde . . . Dog (www.sickporn.in).”1
One needn’t be a cynic to suppose that an intended purpose–perhaps the primary purpose–of
Exhibit C to the complaint in each of these lawsuits is to increase the pressure on a subsequently
identified Doe defendant to settle before s/he is publicly linked to hardcore/deviant titles that are
completely irrelevant to plaintiff’s actual claims in the lawsuit. If this is true–and right now it
is the court’s operating hypothesis–then plaintiff probably has violated F.R. Civ. Pro. 11(b)(1).
Nothing else is going to happen in these lawsuits until the court decides this matter.
So, we are going to freeze all of these cases until plaintiff has explained to the court’s
satisfaction, pursuant to Rule 11(c)(3), what justifies attaching Exhibit C to each of these
lawsuits and why attaching Exhibit C to each complaint does not violate Rule 11(b). Each
district judge will make his or her own determination of any Rule 11 violation in the cases
assigned to that district judge and the chief judge will make the determination on the cases
assigned by the computer to me (and for which joint consent is impossible to obtain at this
juncture). I am sealing all of the complaints and attachments to protect them from prying eyes
until the court determines whether Exhibit C should be stricken and whether plaintiff should be
sanctioned.

ORDER

1

This example is not from 13-cv-322 (I am intentionally not attributing it to a particular case, but
it’s in there) and this is the most justified ellipsis the court has employed in a long time.
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It is ORDERED that:
(1)

The complaint and all attachments are SEALED in each case
captioned above.

(2)

These previously-entered orders are STAYED:
Case No. 13-cv-205, April 2, 2013 order, dkt. 6.
Case No. 12-cv-207, April 4, 2013 order, dkt. 6.
Case No. 12-cv-208, March 27, 2013 order, dkt. 6.
Case No. 12-cv-209, March 27, 2013 order, dkt. 6.
Plaintiff must serve a copy of the instant order on every ISP to
which it has provided or otherwise invoked the orders listed in this
paragraph. If plaintiff already has received from an ISP information
identifying a Doe household, then plaintiff shall not communicate
or contact that household in any fashion until this court grants
permission to do so.

(3)

Pursuant to F.R. Civ. Pro. 11 (c)(3), not later than June 7, 2013,
plaintiff shall show cause why attaching Exhibit C to each
complaint does not violate Rule 11(b).

Entered this 28th day of May, 2013.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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