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

Individual defendants found liable in Grooveshark case

In UMG Escape Media, the Court has granted summary judgment finding the individual defendants to be liable for copyright infringement.

September 29, 2014, decision granting summary judgment against individual defendants

New ruling in Capitol v MP3Tunes, reduces punitive damages, denies Robertson motion for new trial

In Capitol Records v. MP3Tunes, the Judge has denied individual defendant Michael Robertson's motion for a new trial, but reduced the punitive damages award on the state law claims for pre-1972 recordings.

September 29, 2014, Decision, denying motion for new trial, and reducing punitive damages

2nd Circuit OK's scanning whole books for research as fair use in Authors Guild v HathiTrust

In Authors Guild v. HathiTrust, the US Court of Appeals has ruled that scanning whole books for research purposes is fair use.

In HathiTrust, a group of universities took digital scans prepared by Google and stored them in a "digital library".

The library permitted 3 uses of the material:
(1) The public was allowed to search by keyword. The search results showed only the page numbers for the search term and the number of times it appeared; none of the text was visible.
(2) People with disabilities which prevented them from holding books and/or turning pages could be provided access to the full texts.
(3) Members could create a replacement copy of a lost, stolen, or destroyed book if a replacement was not obtainable in the market at a "fair" price.

The Court held the search function to be a fair use, finding that
-the creation of a searchable, full text database is a "quintessentially transformative use";
-it was "reasonably necessary" to make use of the entire works, and to maintain 4 copies of the database;
-the library did not impair the market for the works.

The Court likewise found it to be a fair use to make copies available to the disabled who are unable to access print books.

The Court declined to rule on the replacement book issue, on the ground that the plaintiffs lacked standing to raise that question.

June 10, 2014, Decision, US Court of Appeals, 2nd Circuit

Viacom v Google settled out of court (old news)

I just found out about this today, thanks to an old tweet by Bill Rosenblatt H/T Bill.

Viacom v. YouTube has been settled out of court.