Judge Questions Malibu Media's Technology Use In Lawsuits

SAN FRANCISCO—Two thousand seventeen hasn't exactly been a good year for those who have been labeled copyright trolls; that is, companies that own the copyright to a pornographic movie, sue numerous John Does for pirating the movie from sites like BitTorrent, subpoena each Doe's ISP to find each Doe's identity, then offer not to sue them (with the accompanying major embarrassment) if Doe sends a check to make it all go away.

The description above is a close paraphrase of the findings of U.S. District Judge Otis Wright in his June 27, 2012, Order in the case of Malibu Media LLC v. John Does 1 through 10, case number 12-3632—as quoted in the Order issued on Wednesday by U.S. District Judge William Alsup in the case of Malibu Media LLC v. John Doe subscriber assigned IP Address That last number is what Malibu Media, the parent of adult site X-Art.com, wanted to use to identify its alleged infringer using geo-location software to find the ISP that serves that address, all in an effort to subpoena the ISP to find out Doe's name.

And that's exactly the process that Judge Alsup is questioning in his Order To Show Cause regarding Malibu Media's case, in anticipation of dismissing it and at least a dozen other similar cases that Malibu Media has filed.

Here's the problem, according to Judge Alsup: "Since IP addresses are not assigned geographically, Malibu Media needed to use geolocation technology that mapped each accused IP address to a region in order to determine that jurisdiction and venue were proper before filing a lawsuit. ... 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 'Maxmind' to map our defendant’s IP address to a particular district in order to determine the proper venue for this action. The declaration parroted several hearsay statements about the accuracy of Maxmind from its website, but counsel also averred that in their experience in California 'Maxmind has always been 100% accurate to the state level, 100% accurate at identifying the ISP and has predicted the correct district 146 out of 147 times.'" [Citations removed]

The key word there is "hearsay," defined as "unverified, unofficial information gained or acquired from another and not part of one's direct knowledge"—and generally not admissible in legal proceedings, as Malibu Media found out in previously filed cases where it had attempted to use MaxMind's geo-location software.

Moreover, Judge Alsup apparently did his homework, citing at least a couple of examples where MaxMind had provided wildly implausible locations for some IP addresses—like mapping "more than six hundred million IP addresses to a single farm in Kansas." Indeed, cases where MaxMind's software screwed up aren't that difficult to find, like here (note comments), here and here.

The judge also made it clear that he's no fan of Malibu Media's methods, again quoting Judge Wright: "The federal courts are not cogs in a plaintiff’s copyright-enforcement 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. ... 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."

But the reason for Judge Alsup's May 10 Order was Malibu Media's request to continue (postpone) the case management conference in the Doe lawsuit, originally set for May 18, to a later date "because it only received defendant’s identifying information on April 23, and has not yet had time to serve the summons and complaint, the deadline for which is May 28."

Judge Alsup denied that request, and instead ordered Malibu Media to present argument why this and future infringement cases whose defendants were located using MaxMind software should not be dismissed outright "until the accuracy of the geolocation technology is fully vetted." Malibu's attorneys have until noon on May 16 to provide sworn statements to that effect—or risk having all of its cases based on MaxMind locations dismissed.

"To be clear, this order applies even if Malibu Media voluntarily dismisses this action," Judge Alsup's Order states.

AVN has reached out to Malibu Media representatives for comment on Judge Alsup's ruling, but at post time, no response had been received.