Saturday, January 23, 2021

Malibu Media has to pay attorney's fees when it doesn't present evidence of its claim of copyright infringement

 

California coast, 2012

In the channel “Lawful Masses with Leonard French”, Leonard discusses the copyright troll Malibu Media, which recently was ordered to pay a defendant’s legal fees.

Malibu Media appears to identify home users to have used the packet capture of Bit Torrent to download copies of copyrighted movies and videos.  They have apparently often focused on “adult content”.

Electronic Frontier Foundation has an article (no date) about their tactic of sometimes listing other “adult titles” that the user has supposedly downloaded, in order to threaten the user into public shaming (like job loss) in order to settle. 

Techdirt has many stories about Malibu Media, the latest of which (by Michael Masnick) from Aug 2020 concerns a judge’s denial of a default judgment.  There is a legitimate question whether, as a matter of law, the “ownership” of an IP address in one’s home (as from a cable company) creates the presumption that this address was used to do an illegal download.

However, cable companies typically offer homeowners the ability to set up separate accounts for other residents or renters.  This could be an issue for an Airbnb renter, or for hosting someone (like an asylum seeker) or for other charitable reasons (domestic violence victims).  I checked into this in 2017 with Comcast when I considered hosting someone (I didn’t) and Comcast appeared to be able to keep the usage separate.

Families, however, could get into trouble if their kids or teens used parents’ accounts. 

It’s unclear from the media reports if Malibu buys titles for the purposes of litigating, or is a legitimate distributor (the way the motion picture industry works) of films, adult or not.

If it normally distributes the content to legitimate consumers, them it would have the legitimate interest of protecting intellectual property that it intends to rent or sell copies of to legitimate actual consumers.

There have been other copyright trolls.  Back more than ten years ago, Righthaven was suing bloggers for including copies of news stories of photos from snall town newspapers, claiming it was protecting legitimate small town journalism.

 I think I had heard of a few other companies trolling Bit Torrent about a decade ago.

French notes that the company finds it more lucrative go after consumers than “purveyors” of copyrighted content, with analogy to drug laws against users. 

He also, at about 34 minutes into the video, questions whether the Copyright Office under the CASE act will be inclined to try to stop this abuse.

He notes that if someone receives a complaint from the Office, he they must challenge it affirmatively if they want to challenge it in court.

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