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Submission All Malibu Media subpoenas in Eastern District NY put on hold

NewYorkCountryLawyer writes: A federal Magistrate Judge in Central Islip, New York, has just placed all Malibu Media subpoenas in Brooklyn, Queens, Long Island, and Staten Island on hold indefinitely, due to "serious questions" raised by a motion to quash (PDF) filed in one of them. Judge Steven Locke's 4-page Order and Decision (PDF) cited the defendant's arguments that "(i) the common approach for identifying allegedly infringing BitTorrent users, and thus the Doe Defendant, is inconclusive; (ii) copyright actions, especially those involving the adult film industry, are susceptible to abusive litigation practices; and (iii) Malibu Media in particular has engaged in abusive litigation practices" as being among the reasons for his issuance of the stay.

Comment Re: Go Virtual (Score 2) 158


Getting things in a state that they're repeatable is step one and it very much sounds like you dont have that. Using a combination of VM and deployment technologies (like puppet) will both give you a safe sandbox to work in and careful change management. Once you have that the rest should fall into place much easier (disaster recovery, upgrade management, etc are much simpler).

Comment Pretty Happy Anyway... (Score 2) 51

Been using it for a month now as both a Google Voice user and someone who has GV in not-a-gmail-dot-com email address (i.e. my own domain).

Fi won't allow you to use a non-gmail-dot-com email address, period, and this makes things even a bit weirder (and I couldn't really port my GV number to Fi anyway for that reason).

That said, the base service itself runs REALLY well--switching between networks works nearly flawlessly (and there are definite times AT&T drops and TMob kicks in). As the writer of the article states, if you don't use GV (and I'll add do use a address normally), you're golden.

Oh, and you can't forward your GV number to Fi either (I had to forward to a "real" phone, then back to Fi. Works, but kludgy).

They'll get it together and it'll be fine. In the meantime, this early adopter had to jump through some hurdles and that's OK. If you're an existing GV user and can't cope with weird, don't bother with Fi until they get it fixed up.

Comment Re:Victory for common sense! (Score 1) 91

If other judges follow this precedent, it will be the death knell of civil litigation involving the internet in any way. I don't like how trolls do business, but I don't think changing the rules like this is a good idea overall.

This isn't changing the rules. This is following the rules.

See my article in the ABA's Judges Journal about how judges had been bending the rules for the RIAA. "Large Recording Companies v. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigation". The Judges' Journal, Judicial Division of American Bar Association. Summer 2008 edition, Part 1 of The Judges Journals' 2-part series, "Access to Justice".

Comment Re:Victory for common sense! (Score 1) 91

Remember, Malibu Media can just change venues too and start this all over again... This judge didn't do anything worth while for you and me and opened himself up to an appeal where he obviously will be slapped. About the only thing he accomplished is getting Malibu Media out of his courtroom and off his docket, for now. Nothing else will change.

I beg to differ.

Malibu Media can't choose the venue, or the judge.

If Judge Hellerstein's decision is followed by other judges, it will be the death knell of the present wave of Malibu Media litigation.

Comment Re:Victory for common sense! (Score 1) 91

I fully appreciate your perspective and I agree that the waters are getting pretty muddy when you start trying to tie an IP address to a person, but the issue here is the issuing of the subpoena and not letting Malibu Media pursue discovery. They must be allowed to protect their rights in civil court, and that means they must be allowed to subpoena third parties for information so they can move from "John Doe" to an actual name and in this case, that takes a subpoena from the court.

While your argument for discovery has some logic to it, it is based on a false assumption of fact : that Malibu Media, once it obtains the name and address of the internet account subscriber, will serve a subpoena on that person in an attempt to find out the name of the person who should be named as a defendant.

Malibu Media's uniform practice, once it gets the name and address, is to immediately amend the complaint to name the subscriber as the infringer/defendant and then serve a summons and amended complaint, not a subpoena, on the subscriber.

This is in every single case .

Comment Re:Victory for common sense! (Score 1) 91

I'm not so sure I agree that this make sense...

You didn't read the judges 11 page opinion then, where he makes his reasons very clear. Among other things, the trolls claim that they need the information to take people to court, but they never do; they just abuse the courts as a cheap way to get information for their blackmail scheme. The point that an IP is not an ID is exactly the point here, because the copyright troll wouldn't have any right to the name of anyone than the copyright infringer. And the fine judge found out that these copyright trolls have in several instances just ignored court orders and have just lied to the courts.

Well said

Comment Re:Copyright trolls going down is a good thing (Score 4, Informative) 91

Hi Ray, nice to see the NYCL moniker around here again. I have a few questions if you're willing. First, you indicate that a judge has denied discovery due to several factors, one being that an IP address does not identify any particular individual. Can you speak to the weight or breadth of this specific Court's opinion here, in layman's terms? I see references to the Eastern and Southern districts of New York, might this decision influence cases outside of those jurisdictions?

It's not binding on anyone. But Judge Hellerstein is a very well respected judge, so it will probably have a lot of 'persuasive authority'.

Second, this business of "if the Motion Picture is considered obscene, it may not be eligible for copyright protection." I've read about certain cases where the Court stated that obscenity has no rigid definition, but "I'll know it when I see it." Does that have any bearing on the Malibu case? Was this some kind of completely outrageous pornography, where any community standard would likely find it to be obscene, or was it just run-of-the-mill porn? Would it matter either way? Would the opinion have likely been the same if the case involved a blockbuster Hollywood film instead of a pornographic and potentially obscene film?

I haven't researched that question yet, and I may well be litigating that issue in the near future, since I have several cases against Malibu Media which are now in litigation mode... so all I can say is, stay tuned.

Lastly, I'm curious whether or not you've kept up with developments in the case regarding Prenda Law, and how you might compare this case to that one, if at all. I try to read Ken White's PopeHat blog every once in awhile to see how poorly the Prenda copyright trolls are faring. It doesn't look good for Prenda, and I wonder if you would put Malibu in the same proverbial boat.

The Prenda people are a bunch of strange people who, based on reports I've read, may well wind up doing jail time. I know nothing about the Malibu Media people. If I did find out something really bad about them in would probably wind up in my court papers if relevant to the case or to their credibility.

Comment Re:F? (Score 1) 91

I should clarify: I didn't mean actual expansion of the law. What I meant in regard to item "F" was: since when does difficulty of enforcement, even if they did prove it, justify loosening the standards of evidence? I did not think that was allowable.

Well I knew exactly what you meant Jane, even before you 'clarified' it.

Comment Re:F? (Score 3, Insightful) 91

Hi, NYCL! I haven't noticed you around here much lately. Is item F even a thing? Since when does the difficulty of enforcing a law allow judicial expansion of the law? I thought that idea had been thoroughly buried a long time ago.

I have to agree with you Jane Q. For 10 years I've been trying to wake the courts up to the fact that they're not supposed to bend the law to help content owners just because the content owners don't know who committed the infringement. Glad to see them coming around.

Comment Re:Victory for common sense! (Score 1) 91

I think that if this troll can prove they have a copyright on the material and the right to enforce it, they will have a good case to appeal this decision and it will likely be overturned.

You also have to prove that the person you're suing actually committed the infringement. It's not enough that they paid the bill for an internet service account that somebody used to commit an infringement.

Submission Judge Calls Malibu Media "Troll", Denies Subpoena

NewYorkCountryLawyer writes: In what could be the beginning of the end of the Malibu Media litigation wave involving alleged BitTorrent downloads of porn films, Judge Alvin K. Hellerstein in Manhattan federal court has denied Malibu Media's request for a subpoena to get the subscriber's name and address from his or her internet service provider. In his 11-page decision (PDF), Judge Hellerstein discussed "copyright trolls" and noted that (a) it is not clear that Malibu Media's porn products are entitled to copyright protection, (b) discussed some of its questionable litigation practices, (c) Malibu's "investigation" leads at best to an IP address rather than to an individual infringer, (d) there is a major risk of misidentification, (e) Malibu has no evidence that the individual John Doe committed any act of infringement, and (f) Malibu's claim that there is no other practical way for it to target infringement was not supported by adequate evidence.

Comment Been at Both Extremes... (Score 1) 170

My take is that those that are truly successful in CompSci have both a love of the utility that computers have AND the escapism that they enable through games and play generally.

Back when I was 8 or so, I had my first exposure to video games at the hotel we happened to be staying at in Anaheim outside of Disneyland. Asteroids, mostly. I was hooked. Within the next 2 years, I'd found a way to buy my first computer (a used Tandy Model 1 with tape drive--yep, like I said, I'm old). I whiled away my afternoons loading games off of tape and editing their sources to figure out how to cheat at them.

Later I traded up to a Commodore 64, then a Mac SE, and HyperCard got me through high school (along with a very early Casio graphing calculator). I wrote little games, demos, and all kinds of other mostly-worthless junk in BASIC and HyperTalk. I wasn't a particularly great student (in particular, I was spectacularly lazy), but I got a fair start learning the first three of what I call the five basic CS topics:

By the end of HS:
1. Substitution - Using variables in place of concrete values
2. Iteration - things like loops
3. Problem Decomposition - breaking things down into component parts like functions/subs/whatever

Not until later:
4. Object-Orientation - binding data with its associated configuration (aka code to everyone else)
5. Recursion - writing routines that call themselves and enable decent into hierarchies

(Feel free to argue whether things like algorithm analysis, data structures, state machines, and whatnot are separate or fall into these categories--the reader obviously knows how I feel about it)

So by the time I was done with high school, and almost entirely without any kind of formal training, I was decently grounded in 1-3 mostly on my love of video games as a motivator. Soon after, however, my ridiculous lazy streak kicked in, and you really can't get to advanced topics while being profoundly lazy. I got to university and had my proverbial ass handed to me--brick walled on differential equations, too lazy to write anything of any substance, and what killed me utterly was that it was clear I had no clue how to sell my ideas to others and make them a reality (thanks to the Intel internal bureaucracy for that). ...So I dropped out and sold computers for a year. I did pretty well at it, and figured out how to sell stuff (a skill which has since served me well in professional life). I fell out of love with computer games, however, as it made little sense to spend so much money buying hardware to pirate games and fight win95 when the PS1 made playing games SO EASY (and it made more money for the retailer anyway--margins on computers were razor-thin). But I loved this Linux thing I started messing around with back in 1993--you could examine the code if you want and run sessions for a dozen people off commodity PC hardware (which itself could just barely run Win95). It was awesome--efficient, productive, and open to all who had the skill. ...and I really didn't have the skill, but I again had the motivation to get it. I took networking classes, moved to Silicon Valley during the dot-com boom (you mean I can work with Linux FOR A LIVING? Sign me up!), and preached my gospel of computer gaming being a waste of time and resources for several years until one day a coworker said the following:

"I like computers, but if I don't play games, then computers become entirely work and then I won't like computers anymore."

It wasn't just about productivity and efficiency anymore, and it wasn't about being a timesuck and an escape, either; it was about maintaining moderate motivation--to love computers for both their own utility AND for the entertainment value of loving a good hack and getting sucked into a different world. Both, not either by themselves, and they're not mutually-exclusive.

I eventually restarted my college career and graduated with my CompSci bachelor's from San Jose State in 2008--16 years after starting at Arizona State in 1992. But I was motivated by BOTH a love of computers for their utility AND that escape into another world. At the end, I was named SJSU CompSci's 2008 Graduating Senior of the Year, was a Software Engineer for a while, and now run a team of incredible software engineers. And I still hack code almost daily (silly management responsibilities get in the way sometimes, though).

What's the story, then? Motivation in moderation. If you see computers too much as a tool, you can't maintain your motivation on will alone (though it will take you decently far). If you see computers entirely as entertainment, you can't maintain your motivation on that either. The trick is to balance the two and maintain your love of tech from both angles.

Nothing recedes like success. -- Walter Winchell