Veteran porno-troll Malibu Media, LLC has filed a batch of single-“Doe” Bittorrent copyright infringement actions in the U.S. District Court for the Western District of Wisconsin and the U.S. District Court for the Western District of Wisconsin.

Some readers might remember Malibu Media as the target of a 2012 class-action lawsuit, along with other pornographers that were part of the Miami-based Lipscomb Eisenberg law firm stable.

The new singleton Doe actions each focus on a specific ISP service subscriber identified by his or her IP address. As this sample Complaint filed by attorney Mary K. Schultz, Esq. shows, the “works” in the suit are apparently short-form porn videos with relatively innocuous titles (at least by this industry’s standards) such as “Morning Desires,” “Foot Fetish,” “Slow Motion,” “Late for Work,” and “Teenage Dream.”

In an unusual turn, the Complaint also attaches an “Exculpatory Evidence Request” seeking a host of information about the subscriber and users of the relevant IP address or ISP account. The Complaint explains this Request as follows:

As the subscriber in control of the IP address being used to distribute Plaintiff’s copyrighted movies, Defendant is the most likely infringer. Consequently, Plaintiff hereby alleges Defendant is the infringer. Plaintiff has included as Exhibit D a solicitation of exculpatory evidence in the event that Defendant chooses to deny the allegations.

This is apparently intended to assure the court that Malibu Media will make some attempt to identify the actual infringer if the ISP subscriber personally denies infringement as alleged. Continue Reading Malibu Media pursuing Singleton Doe Actions In Wisconsin and Michigan

reFX Software, Inc., the Canadian maker of professional-grade music mixing software plug-ins, has filed at least two mass Bittorrent lawsuits in federal courts in Illinois and Missouri.

reFX makes plug-ins for ROM sampler or “Rompler” software engines commonly used by electronic and dance music-makers to synthesize tracks. The Complaint includes an explanation for these products which is not entirely clear as to which products are included in the lawsuit, but states that it includes the registrated copyrights for Nexus 2 and Nexus 2.2.0

These reFX products retail for $299-2,899, depending on the features included.

The lawsuits include reFX Audio Software Inc. v. Does 1-39, Case No. 4:13-cv-895, filed 5/10/13 in the U.S. District Court for the Eastern District of Missouri; and reFX Audio Software Inc. v. Does 1-180, Case No. 1:13-cv-3524, filed 5/10/13 in the U.S. District Court for the Northern District of Illinois.

The Complaint was filed by Paul Lesko of the Simmons Browder law firm in Alton, Illinois.

The past few months have seen a major uptick in Bittorrent copyright lawsuit filings in the District Courts of Washington and Oregon. The filing attorneys are relative newcomers and are apparently hoping to avoid some of the past problems experienced by Prenda Law attorneys and others whom have been scolded for imprecise and sloppy investigations and other procedural irregularities. These new filers are reportedly focusing on geo-location technologies and more robust online investigations to support appropriate jurisdiction and venue. Continue Reading Wave of Torrent Litigation Crashes on the Pacific Northwest

Some readers may have heard about a recent putative class action lawsuit filed by a Louisville, Kentucky resident against several porn studios for their now-familiar subpoena, threat and litigation tactics.  The lawsuit, which is described and linked in full within this article by David Kravets of Wired, makes claims for violations of the federal RICO Act, common law fraud, defamation and other causes of action.  The article features commentary from Download Defenders attorney Lory Lybeck.

The named defendants are pornographic film producers Malibu Media, LLC, Patrick Collins, Inc., Raw Films, Ltd., K-Beech, Inc., and Third Degree Films.  Some readers may recognize these studios as part of the Lipscomb, Eisenberg and Baker law firm stable.  As the class action suit reflects, the Miami-based Lipscomb firm may have pioneered the use of the “complaint in equity for pure bill of discovery,” which relies on an obscure provision of Florida law as the catalyst for issuing ISP subpoenas from mass Doe lawsuits.

It remains to be seen how the filing will impact the ongoing tactics of these companies.  Malibu Media in particular has been dealt some recent setbacks in certain New York federal Doe lawsuits, and garned some strict scrutiny in California (via Fight Copyright Trolls).  It is reported that Malibu Media, LLC has substantially stepped up its settlement demands as of late, often alleging ten or more infringements against a single IP address or Doe.

Subpoenas are being issued out of the U.S. District Court for the Western District of Louisiana in the case of 4:Twenty Media, Inc. v. Swarm Sharing Hash Files [very long alphanumeric]; and Does 1-1,341, Case No. 6:12-cv-00031.

This case was filed by Joseph C. Peiffer of New Orleans firm Fishman Haygood Phelps Walmsey Willis and Swanson, L.L.P., but apparently Illinois lawyer Paul Lesko has some involvement, according to reports. View the complaint here.

According to sources, the plaintiff has been somewhat diligent with prompt dismissals related to settlements, and about 800 Does currently remain in the case.

The case involves the motion picture “Teen Anal Sluts” (not to be confused with “Teen Anal Nightmare 2,” the subject of a prior Dunlap Grubb and Weaver action).

Reports indicate that major ISPs, including Time Warner Cable, are delivering notices to customers in response to subpoenas issued by Camelot Distribution Group, Inc. Camelot is pursuing the Does over the alleged infringed of the copyrights to “Wreckage,” a 2010 horror/drag racing film featuring Aaron Paul of the celebrated AMC series “Breaking Bad.”

The subpoeanas arise from a lawsuit filed last year in the U.S. District Court for the Eastern District of California, Camelot Distribution Group v. Does 1-1210, Case No. 2:11-cv-02432-GEB -KJN. View the complaint here.

Readers may remember that Camelot had pursued an earlier Bittorrent suit against 5,000-plus Does in regard to “Nude Nuns with Big Guns.” That suit was dismissed after a dispute emerged with another company over which actually owned the rights to “Nude Nuns” (via Wired).

By now readers may have heard about a handful of lawsuits being pursued by XPays, Inc., a company that apparently specializes in the monetization of celebrity sex tapes through its “performance commerce network.”

Two cases filed in the U.S. District Court for the Central District of California have sought to protect the rights to some version of a controversial sex tape featuring model, reality show participant, and “celebutante” Paris Hilton.

In one matter, XPays, Inc. v. Does, Case No. 2:11-cv-00652-SJO-MAN, several individual defendants were served and named after being disclosed through the subpoena process. Ultimately, the case was dismissed in October of last year “without prejudice” after a court ruling that XPays would need to pursue separate cases against each of those named individuals.

A second case, XPAYS, Inc. v. Does 1-995, Case No. CV 11-05880 ODW, remains active in the Central District. Both cases were filed by lawyer Michael Fattorosi. According to sources, XPays has “stiffened” its settlement demands as of late, and plans to again name individual defendants personally in the very near term.

With more intrigue, a secret lawsuit was filed in the U.S. District Court for the Eastern District of Texas, with Case No. 4:11-cv-00545. The matter was placed under seal, and court filings are generally unavailable to the public through the PACER system. However, it is known that the case bears the unruly caption of XPays, Inc. v. JOHN DOES INVOLVED IN FILESHARING SWARM MARKED BY HASH: 8ED7417E11635B1F8E8109995FF5EA68700BA5CB, suggesting that the allegations of the complaint bear some resemblance to the “swarm”-specific averments previously used by Randazza Legal Group on behalf of Liberty Media Group (a sample Liberty Media complaint is here). The XPays case was filed by Kevin Harrison, an entertainment lawyer in the Denton, TX area.

The Texas matter invovles a sex tape featuring aspring actress Jasmine Waltz, who has been publicly linked to Hollywood men Ryan Seacrest and David Arquette.

Very recently, one motivated Doe filed a motion to quash the subpoena issued in the secret XPays case through public filings made separately in the U.S. District Court in Connecticut. With all due respect to the filer, the pleadings themselves show the difficulty–and frequent futility–of trying to conceal one’s identity by filing public documents in the court, which effectively requires the publication of the filer’s name and address. This is, of course, the very information sought via the subpoena process. However, this particular motion does bring to light some of the secret filings in the Texas matter, and apparently the reviewing judge has issued an order to show cause why the motion should not be granted.

The strength of a mass copyright lawsuit against hundreds or thousands of Does depends very heavily on the early reception it enjoys from the federal district court which manages it.  As was mentioned in a prior post regarding challenges to ISP subpoenas in certain cases from the U.S. District Court in D.C., an individual court’s approach to entertaining–or rejecting–motions to quash and other challenges should factor into the strategy employed in responding to the lawsuits during the Doe phase.

Judges in the D.C. district court have shown a considerable tendency to reject challenges to subpoenas on grounds of lack of personal jurisdiction over the Does or improper joinder and venue, including, most notably, Judge Beryl Howell (Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873-BAH, Call Of The Wild Movie, LLC v. Does 1-331, No. 1:10-cv-00455-BAH, and Maverick Entertainment Group v. Does 1-2,115, No. 1:10-cv-00569-BAH).

Continuing this trend, just on June 10 Judge Colleen Kollar-Kotelly issued an opinion in West Coast Productions, Inc. v. Does 1-5,829, No. 1:11-cv-00057-CKK, which largely followed Judge Howell’s reasoning on these issues and rejected 59 motions to quash and other subpoena challenges.  The opinion even instructs the court clerk not to accept motions filed by Does seeking to proceed anonymously.

However, during the same week Judge Robert Wilkins expressed a decidedly different attitude regarding the joinder and venue issues in NuImage, Inc. v. Does 1-23,322, No. 1:11-cv-00301-RLW.  The NuImage case, which involves the Sylvester Stallon action movie “The Expendables,” has become infamous as the largest Bittorrent lawsuit in U.S. history (via Wired).  Readers can view the first amended complaint and its massive exhibit listing 23,000-plus IP addresses implicated in the lawsuit.

On June 7, Judge Wilkins issued an order requiring NuImage to show cause “why venue and joinder is proper for all 23,322 putative defendants” in the case.  In the process he vacated his own prior March order permitting the subpoena process.  He also scolded NuImage for its delay and having not served any of the subpoenas he already authorized (via ArsTechnica). NuImage’s response is due on June 21.

Observers waiting on his ultimate decision are left to wonder why Judge Wilkins has raised issues in NuImage that have already been addressed in some detail in his colleague’s several earlier opinions, reversing himself in the process.  Is it the sheer size of the NuImage case that matters? Perhaps only additional time will tell.

In another set-back for ISP subscribers targeted in the ongoing Torrent troll campaign, U.S. District Judge Beryl A. Howell recently entered multiple lengthy opinions denying over 75 motions to quash subpoenas that had been issued in three prominent mass copyright suits, motions for dismissal, and other challenges to the subpoena process employed in the case.

To review, these subpoenas are a critical part of the strategy employed by copyright plaintiffs in these cases, as they allow their lawyers to obtain the name and address of an ISP subscriber whose internet account is allegedly associated with infringing activity remotely detected by the plaintiff’s online investigation.  Once the court authorizes a subpoena, the ISP who receives it is then under a legal obligation to disclose the information, absent a further court order or direction from the requesting party.

Since the emergence of the mass BitTorrent lawsuits approximately one year ago, privacy-rights advocates and other opponents of the troll lawsuits have urged the filing of motions to quash the subpoenas and other challenges to the subpoena process as a means to preserve individual anonymity, and hopefully, to derail these schemes in a more fundamental way.

Unfortunately, Judge Howell, in three very similar opinions rendered on May 12 in Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873-BAH, Call Of The Wild Movie, LLC v. Does 1-331, No. 1:10-cv-00455-BAH, and Maverick Entertainment Group v. Does 1-2,115, No. 1:10-cv-00569-BAH, laid waste to many of the thoughtful and well-intentioned arguments raised by the challengers. These arguments included challenges on the basis of improper joinder of numerous Doe parties, and the court’s lack of personal jurisdiction over the Does.  With specific regard to the jurisdictional arguments, in the Maverick opinion the court said:

“To be clear, at this stage in the proceedings, the plaintiff is engaged in discovery to identify the proper defendants to be named in this lawsuit, including whether the exercise of jurisdiction over each potential defendant is proper. If and when the putative defendants are ultimately named in this lawsuit, the defendants will have the opportunity to file appropriate motions challenging the Court’s jurisdiction, and the Court will be able to evaluate personal jurisdiction defenses and consider dismissal. Until that time, however, dismissal under Rule 12(b)(2) is inappropriate.”

These opinions follow an even more thorough March 22 decision from Judge Howell addressing, and rejecting, related arguments by the EFF and the ACLU.

These discouraging decisions suggest that the many individuals targeted in these troll schemes should re-consider whether filing motions to quash and other subpoena challenges is really the most effective way to respond to the threats against them.

Porn purveyors are keeping the wave of copyright troll litigation rolling with a host of recent suits.

The subpoena process is ongoing in West Coast Productions, Inc. v. Does 1-5,829, No. 1:11-cv-00057-CKK, which was filed in the U.S. District Court for the District of Columbia in January.  This suit, which is focused on the infringement of “Teen Anal Nightmare 2,” is continuing to create havoc for thousands of individuals across the nation, many of whom  are embarrassed, surprised or even disgusted with being associated with the title.  The case was filed by Ellis Bennett of Dunlap, Grubb and Weaver (DGW), the D.C.-area law firm responsible for a dozen or more troll cases pending in the same court.

Four similar Bennett/DGW cases, West Coast Productions, Inc. v. Does 1-1,434, No. 1:11-cv-00055-JEB, Axel Braun Productions v. Does 1-2,823, No. 1:11-cv-00056-EGS, Patrick Collins, Inc. v. Does 1-156, No. 1:11-cv-00058-RMU, and Third World Media, LLC v. Does 1-4,171, No. 1:11-cv-00059-RWR, were all filed at the same time and assigned to different judges in the same D.C. courthouse. These cases involve the illustrious productions “Juicy White Anal Booty 4,” “Batman XXX: A Porn Parody,” “Massive Asses 5” and “Tokyo Teens.”  Apparently the subpoena process in these matters is not yet proceeding, as Mr. Bennett and his pornographer clients are still awaiting approval from the court to serve the subpoenas.

More recently, DGW and Mr. Bennett were hired by another porn-maker to file Imperial Enterprises, Inc. v. Does 1-3,145, No. 1:11-cv-00529-RBW.  This follows the same familiar formula as the prior cases, but it involves two films: “Teen Paradise 4” and “Tokyo Cougar Creampies.”  On April 5, Imperial was given permission from the court to send out subpoenas to the ISPs.

Taking a slightly different tactic, Liberty Media Holdings, LLC has unleashed a rash of very recent cases in Florida, Wisconsin, California, Colorado and elsewhere which name not only several “John Doe” parties, but also a specific Bittorrent swarm which was allegedly detected on a specific date sharing a “hash file” identified by a lengthy string of letters and numbers.  The typical complaint alleges not only copyright infringement but also “civil conspiracy,” and blames the Does for “negligence” in “failure to secure their Internet access,” which allegedly allowed others to share copyrighted works. These matters involve a Corbin Fisher film in the gay porn genre, “Down on the Farm.” Most of these cases have been filed by the Randazza Legal Group, led by noted First Amendment attorney Marc Randazza.  Reportedly, Liberty Media has detected up to 40,000 infringers it may pursue.

Finally, a troubling AP story (via MSNBC) on SWAT team home invasions and other rude awakenings experienced by innocent ISP subscribers after their wireless internet access was covertly poached by child pornography enthusiasts.