Porn studio Malibu Media has filed more than 4,300 lawsuits over Internet piracy since 2009, making it the most litigious copyright holder in the nation. The lawsuits accuse users at particular IP addresses of downloading Malibu's movies via BitTorrent. Malibu can only get contact information for the defendants from ISPs, who know which subscriber holds which IP address at any given time.
Now one big ISP, Verizon, is apparently tired of the dragnet tactics being used by Malibu Media and its attorneys. On Monday, Verizon filed a motion to quash (PDF) Malibu's newest subpoena, calling it an overreach that threatens Verizon's ability to, among other things, help law enforcement with their subpoenas.
In the motion, Verizon describes Malibu's practice of suing thousands of people for alleged copyright violations. The cases follow a "common arc," Verizon lawyers explain, quoting another case:
(1) a plaintiff sues anywhere from a few to thousands of Doe defendants for copyright infringement in one action;
(2) the plaintiff seeks leave to take early discovery;
(3) once the plaintiff obtains the identities of the IP subscribers through early discovery, it serves the subscribers with a settlement demand;
(4) the subscribers, often embarrassed about the prospect of being named in a suit, settle ....
The subpoenas are taking increasing amounts of time, as Verizon employees "evaluate and respond to competing and sometimes overlapping requests for information."
In this case, Malibu is seeking much more than an IP address and name. Its document requests, posted Monday on the blog Fight Copyright Trolls, include demands for any DMCA or other copyright notices sent to the subscriber in question. It wants records about any rental of a router or modem to the customer and records about Verizon's "policies and procedures regarding the installation and maintenance of passwords on a subscriber’s modem or router."
To boot, Malibu demands that a Verizon representative show up for a deposition about the records. The porn company's lawyers unilaterally set the date of the deposition as September 28, the last day of discovery in the case.
"The subpoena was issued from this district but served in Texas, and purports to command the appearance of Verizon’s representatives—who reside in the D.C. area—to appear and testify in a faraway state, i.e., outside the 100-mile radius for commanding testimony of a witness," Verizon lawyers write. They add that Malibu's outside general counsel, Keith Lipscomb, "is well aware" that the relevant Verizon employees are based in DC.
The porn producer "is seeking much more invasive information which is expressly prohibited" by a subsection of the Cable Act, Verizon lawyers tell the judge. They accuse Lipscomb of selectively quoting the Cable Act in such a way as to suggest he's entitled to information that's actually reserved for law enforcement.
And speaking of law enforcement, Verizon attorneys don't miss their chance to make the point that Malibu's pile of lawsuits actually interferes with information requests that come from the cops.
"With more than one thousand cases filed by Malibu Media this year alone, permitting depositions of Verizon would create an entire industry devoted to discovery of ISPs," they write, "and take away from resources needed to respond to law enforcement personnel and others who require Verizon’s attention to emergency criminal investigations, and other pressing business."
Monday's motion to quash follows recent Verizon objections in another Malibu case.
It raises the question of whether other ISPs will choose to push back against Malibu's style of litigation. Tangling with ISPs has led to adverse results for other mass copyright campaigns, including that of Prenda Law, which went so far as to sue AT&T and Comcast, saying the ISPs were siding with the pirates. That suit ended with Prenda being ordered to pay the ISPs' legal fees.
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