On June 13, 2013, a Bellwether trial occurred before Judge Baylson in the Eastern District of Pennsylvania. Malibu tried three Does before the bench. By normal standards, it was not much of a trial. All three Does had admitted liability, and two had already settled. The third, Doe No. 16, had agreed to a high-low agreement prior to the trial. Accordingly, there was not a lot at stake. The fact that every defendant waived their right to a jury trial drove this home – if there was anything at stake, no competent attorney would waive his/her client’s right to cross-examine a pornographer in front of a jury. In fact, during the trial, reference was made to an agreement that apparently prohibited counsel for the defendants from speaking. Rather, giving credit where credit is due, Attorney Lipscomb orchestrated this case as a bit of theater, or more specifically, an advertisement, to make his client’s case in the court of public opinion. And again, giving credit where credit is due, this was a victory for Malibu Media.
Taking this for what it was – theater orchestrated by Attorney Lipscomb – there are still some interesting facts that can be learned:
1) Malibu is dead serious about BitTorrent cases: To put on a trial – even an orchestrated trial – cost Malibu $200K+ in legal fees. And yes…$200K+ is a very conservative estimate. There is no way that the stipulations, motions in limine, witness preparation, preliminary motions, etc. could have been done for less. I note that Attorney Lipscomb stated on the record that he was compensated for his time; i.e., there was no contingent fee deal at least for this trial. If Malibu is willing to spend that kind of money, they are willing to vigorously pursue a case.
2) Malibu does send DMCA takedown notices: Colette Fields, who runs Malibu Media, testified that Malibu / X-Art sends thousands of take downs every month, but that torrent sites ignore them. Regretfully, personal experience tells me that this is probably true – most of the torrent sites are based out of “Justice Free” zones, and simply ignore takedown notices.
3) Malibu did not present strong evidence on the correlation of IP address to individuals: Their evidence comprised a stipulation with the various Does as well as testimony by a police officer that had gone after criminals that distributed child pornography. He testified that in over 200 cases, he never once encountered a case of wireless router hacking. The problem with this testimony is, while it sounds great, it is likely not admissible as his experience with other cases is irrelevant to the particular case at bar. Of course, a Defendant crying “wireless router hacking” will not get him anywhere either unless he produces evidence that his router was actually hacked.
4) Malibu plays by the rules and is not going to implode. A lot of Internet pundits are waiting for Malibu to self-destruct the same way that Prenda did. It is not going to happen – Malibu is an entirely different organization that employs competent counsel and takes a very professional approach to these cases. They are not going to commit the kind of fraud that so enraged Judge Wright, Judge Shadur, and lots of other Judges. But…
5) Malibu made a lot of mistakes. Even in the heavily scripted, not-trial-but-theater of June 13, Malibu made a lot of mistakes. Most glaring is, without the admissions of liability, I do not believe that Malibu would have made its case; i.e., without the admissions of liability, I believe that a competent attorney could have moved for directed verdict after the close of Malibu’s case with a reasonable probability that it would have been granted. In addition, Colette Fields made some extraordinary statements – none of which were necessary for Malibu’s case – that are undoubtedly going to be used against her if she is ever deposed or cross-examined in a real trial. Finally, Malibu likely waived any restrictions against mentioning Malibu’s business practices in future trials given statements made during its opening and closing.
The author is the managing partner of the Law Offices of Konrad Sherinian, LLC, a boutique intellectual property and commercial litigation law firm in the Western suburbs of Chicago. The Law Offices of Konrad Sherinian, LLC is one of the leading mass copyright defense firms in the United States, and Mr. Sherinian has personally defended numerous Doe defendants from accusations of copyright infringement due to their alleged participation in file sharing.