malibu media motion to proceed bellweather

7/16/2019 Malibu Media motion to proceed bellweather

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Malibu Media, LLC,Plaintiff,

v. Civil Action No. 12-2078

John Does 1, 13, 14, and 16,Defendants.

Order

Today, this day of 2 0 1 3 , a e r

considering John Doe #13s unopposed motion in limine to proceed

anonymously at trial, it is ordered that the motion is granted. John

Doe #13 will be referred to as John Doe #13 at trial.

:

Michael M. Baylson, U.S.D.J.

Case 2:12-cv-02078-MMB Document 157 Filed 05/30/13 Page 1 of 24


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John Does 1, 13, 14, and 16,Defendants.

Defendant John Doe #13s Unopposed Motion in Limine to

Testify Anonymously at TrialDefendant John Doe #13, through his counsel, A. Jordan Rushie,requests this Honorable Court to allow him to testify at trialanonymously and says in support:

1. John Doe #13 admits that he made a grave mistake when hedownloaded thirty X-Art movies over the internet using bittor-rent, ininging on Malibu Medias copyrights.

2. What he once viewed as downloading some pornographic moviesin the privacy of his home has since turned out to be the biggestmistake of his life.

3. Doe #13 is currently facing a high profile Bellwether trial that hedid not ask for, which will be the first pornographic bittorrentcase ever tried to a jury verdict.

4. News of the the Bellwether Trial has already grabbed the mediaand blogosphere by fire, and was even reported on by the BBC.(Exhibit A).

5. The results of the Bellwether Trial will most likely be widely cir-culated and discussed for years to come.

6. Normally this type of case gets resolved among the parties rela-tively quietly, especially where liability is not disputed like in

Doe #13s situation.



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7. The Plaintiff accepts a reasonable settlement for having their

movies shared over a peer-to-peer network, and someone likeJohn Doe #13 learns that it is not okay to pirate copyrighted ma-terial om the internet, even though internet piracy is com-monplace and widespread.

8. For whatever reason, Doe #13s previous counsel1 decided to filean ill advised motion to quash rather than engage the plaintiff ingood faith settlement negotiations.

9. On October 3, 2012, this Honorable Court designated the casefor a Bellwether Trial.

10. The purpose of the Bellwether Trial was to test the sufficiency of

the plaintiffs evidence, because it has filed copyright cases inthis district but never tried one to a jury verdict.

11. In doing so, this Honorable Court held that if Plaintiffdecidesinstead to continue to pick off individual John Does, for confi-dential settlements, the Court may draw an inference that Plain-tiff is not serious about proving its claims, or is unable to doso.

12. Without the prospect of settlement, the Bellwether Order leDoe #13 facing at a minimum $22,500 in statutory damages,

with potential liability up to $4,500,000 for maximum statu-tory damages, plus having to pay the plaintiffs attorneys fees

under 17 U.S.C. 504(c).13. Although some have suggested that a peer-to-peer file sharing

case could never be tried to a verdict, they are wrong.

14. Capitol v. Thomas2 and Sony BMG v. Tenebaum3, two file sharing copy-right iningement cases,were both tried to a verdict and re-

Malibu Media, LLC v. Does #1, #13, #14, and #16

John Doe #13s Motion in Limine to Testify at Trial Anonymously

2

1Counsel did not enter his appearance, and Doe #13 signed the motion pro se.

2Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. Minn. 2012)

3Sony BMG Music Entertainment v. Tenebaum,No. 07cv11446-NG (D. Mass. Dec. 7,2009).



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sulted in six figure verdicts for the plaintiff, along with wide-

spread attention to the defendants in the media.

15. In Thomas, Jammie Thomas was found liable for copyright in-ingement by a jury and ordered to pay $222,000 in statutorydamages.

16. In Tenebaum, a jury entered a verdict of $675,000 against a manaccused of sharing 30 songs4.

17. The Thomas-Rasset and Tenebaum cases have been covered so widelyin the media that the defendants are practically householdnames, synonymous with the futility of fighting meritoriouscopyright iningement cases. (See, e.g., Exhibits B and C.)

18. Claiming innocence would have required Doe #13 to commitperjury in the civil discovery process, while going to trial wouldexpose Doe #13 to significant statutory damages under 17 U.S.C. 504(c).

19. However, at a status conference held on November 29, 2012,this Honorable Court clarified its Bellwether Order and heldthat it would allow the defendants to settle with the Malibu.

20.Shortly aer, Doe #13s counsel approached Plaintiffs counselto discuss settling the case.

21. Doe #13 admitted liability and settled with the plaintiff on fair

and reasonable terms.22. However, Doe #13 must still appear at the Bellwether Trial,

where he will admit to a jury that he downloaded thirty ofMalibus pornographic movies using bittorrent, ininging ontheir copyrights.

23. Rather than sharing popular music like in Thomas-Rasset and Tene-baum, Doe #13s case involves sharing copyrighted pornography.

24. There is a social stigma attached to people who watch porno-graphic movies.



3

4Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487 (1st Cir. Mass. 2011)



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25. Under these unique circumstances, John Doe #13 implores this

Honorable Court to allow him to testify at trial anonymously.

26. There are many Malibu Media bittorrent cases pendingthroughout the country, and revealing the name of one JohnDoes will not further the public interest.

27. Further, as this Honorable Court recognized in its October 3,2012 Order setting the Bellwether trial, the five John Does who

will be defendants in the Bellwether trial are, in a sense, beingpenalized for filing motions challenging the third-party subpoe-nas presently at issue. (Dkt. No. 30)

28. John Doe #13 has been penalized with almost two years of litiga-

tion, paying attorneys fees, and now he has to sit as a defendantin the first pornographic bittorrent litigation case to go to trial,all in a matter that should have resolved at the outset.

29. Doe #13 has made things right by admitting his mistakes, com-pensating Malibu Media, and not wasting anyones resources onlitigation.

30.Further, the trial transcript and any potential appeal will almostcertainly be used in other bittorrent cases in the future.

31. Forcing John Doe #13 to reveal his name to the public in a highprofile trial that he did not ask for will cause his name to be as-sociated with downloading pornography for years to come.

32. Set forth in detail below, this Honorable Court has the author-ity to allow Doe #13 to testify anonymously in an exceptional cir-cumstance like this.

33. All the parties have consented to this motion, so there is no pos-sibility of prejudice to any party.

34. John Doe #13 simply wants to move on with his life.

35. In light of the extraordinary circumstances created by the Bell-wether Trial, Doe #13s request is fair and reasonable.

, Defendant, John Doe #13, respectfully requests this

Honorable Court to allow him to proceed anonymously at trial.



4



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,

A. Jordan Rushie

[email protected]

Pa. Id. 209066

Mulvihill & Rushie LLC

2424 East York Street Suite 316

Philadelphia, PA 19125215.385.5291

Attorneys for Defendant John Doe #13



5



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John Does 1, 13, and 16,Defendants.

Plaintiffs Memorandum of Law in Support of His Motion in

Limine to Proceed Anonymously at Trial

Culpae poenae par esto - Let the punishment fit the crime

I. Introduction

Today Jammie Thomas-Rasset and Joel Tenenbaum are house-

hold names. Thomas and Tenenbaum were both sued by music

companies who demanded reasonable payments for copyright in-

ingements, but the defendants refused to settle. Nevertheless, they

decided to push their cases to trial. Their actions resulted in six fig-

ure judgments against them, both of which were upheld on appeal.The Thomas-Rasset and Tenenbaum cases continue to be widely reported

on by the media, serving as a cautionary tale about the dangerous of

defending meritorious copyright claims in court.

Enter Malibu Media and Doe #13, litigants who are now involuntary

players in the Bellwether Trial, which is perhaps the third act of the

Thomas / Tanenbaum opera. The Bellwether Trial is the first porno-

graphic bittorent case to be tried to a verdict.

Setting the stage, Malibu Media files lawsuits against John Doe de-

fendants to enforce its rights under the Copyright Act. Malibu is



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entitled to significant statutory significant statutory damages against

iningers under 17 U.S.C. 504(c).

With that context in mind, many bittorrent copyright iningement

cases settle for a reasonable amount of money at the outset

enough to compensate the plaintiff and to deter the internet user

om further iningement, especially if there is no dispute that the

defendant is actually culpable. In many situations, a quick and pri-

vate settlement is in both the plaintiff and defendants best interest.

That was certainly the case here.

While some have suggested that a peer-to-peer file sharing case

could never be proven in court, they are wrong. An ininger likeDoe #13 would have to commit perjury if subjected to the civil dis-

covery process in order to claim innocence. So when a culpable

John Doe consults with a bona fide intellectual property attorney,

they are oen told the cautionary tale ofThomas and Tenenbaum, along

with how the civil discovery process works. A quick and reasonable

settlement is oen determined to be the best option.

At first glance this case seemed ordinary. But for whatever reason,

Doe #13s prior counsel filed an ill-advised motion to quash Mali-

bus subpoena rather than trying to engage Plaintiffs counsel in

good faith settlement negotiations.

On October 3, 2012, this matter became not so ordinary when the

Court set it for a Bellwether trial. Suddenly the next Thomas and

Tenebaum cases were slated for trial at 6th and Market Street in Phila-

delphia, except with two stark differences. First, Doe #13 did not ask

for this fight. Second, this is the first pornographic bittorent case to

be put on before a jury.

Doe #13 admits that his actions were wrong and that he made a hor-

rendous mistake. Doe #13 has since made it right by admitting his

wrongdoing and agreeing to compensate Malibu.

Malibu Media, LLC v. John Does #1, #13, #14, and #16

John Doe #13s Memorandum of Law In Support of His Unopposed Motion in Limine to Testify at Trial Anonymously

2



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As this Honorable Court recognized in its October 3, 2012 Bell-

wether Order, the five John Does who will be defendants in the

Bellwether trial are, in a sense, being penalized for filing motions

challenging the third-party subpoenas presently at issue.

Under the circumstances, if Doe #13 is not allowed to testify

anonymously at trial, this matter will not end for him even aer a

jury verdict is entered and he will be further penalized. Doe #13 will

potentially be known as the next Jammie Thomas or Joel Tenen-

baum except instead of being a college student who was sued and

found liable for downloading popular music off the internet, Doe

#13 will be known as someone who was sued and found liable fordownloading copyrighted pornography.

It is respectfully submitted that Doe 13s mistakes should not have

such far reaching ramifications. In light of the unique and excep-

tional circumstances of this case, anonymity is warranted.

The punishment of public shame by having his name forever associ-

ated with downloading pornography simply does not fit the crime.

Doe #13 simply wishes to move on with his life as soon as possible.

II. Legal Argument

Normally, litigants must identify themselves under Fed R. Civ. P.10(a). The judicial principle is that courts are to be conducted inpublic. Doe v. Megless. 654. F.3d 404 (3d. Cir. 2011). However, alitigant may proceed anonymously when he or she shows there is areasonable fear of severe harm that outweighs the public's interest inopen judicial proceedings. Id. In Megless, the Third Circuit, adoptedthe Provident Life test for weigh the litigant's need for anonymityagainst the traditional rule of openness. Id. at 410.

However, District Courts may allow a party to proceed anonymously

when there are exceptional circumstances. Examples of areas wherecourts have allowed pseudonyms include cases involving 'abortion,

birth control, transsexuality, mental illness, welfare rights of ille-



3



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gitimate children, AIDS, and homosexuality.'" Id. (citingDoe v. Bor-

ough of Morrisville, 130 F.R.D. 612, 614 (E.D. Pa. 1990)).

In re: Bittorrent Adult Film Copyright Iningement Cases, No. 12-1154, is in-structive here. In that case, the the Eastern District of New Yorkallowed defendants to proceed anonymously, holding that:

[o]n the other side of the equation, there is an atypically weakpublic interest in knowing the [defendants] identit[y]. SealedPlaintiff, 537 F.3d at 189. This action is part of a spate of simi-lar actions involving hundreds of thousands of defendants ac-cused of the type of iningement alleged here. In re BitTorrent,2012 WL 1570765 at *1. In fact, a Westlaw search reveals thatthis plaintiff has brought scores of similar actions involvingthousands of John Doe defendants. Thus, in this instance, theincremental value to public of the identity of a single defen-dant is minimal, representing but a drop in a litigative ocean.Thus, applying the Sealed Plaintifftest to this case reveals that thedefendants interest in anonymity substantially outweighs thepublic interest in the single data point of the defendantsidentity.

There are many exceptional circumstances in this case. Doe #13 hasalready been served with the lawsuit, allocated to the allegations inthe Amended Complaint, and settled with the plaintiff. The onlyreason a trial is happening because the case is part of a Bellwether.

The plaintiff and other parties have agreed to the relief requested,so there is no prejudice to any party, nor could granting this motionbe subject to an appeal.

Further, there is little need for the public to learn John Doe #13sidentity. He is one of thousands of people around the country whodownloaded copyrighted pornography om the internet and wascaught. He will testify at trial that the allegations in the AmendedComplaint are true. To that end, the purpose of the Bellwether hasbeen served. The court can be assured that Malibus evidence is reli-able as it pertains to Doe #13.

Given that the court recognized the punitive nature the Bellwether

Trial would have on the defendants, Doe #13 requests an extremely



4



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narrow ruling to proceed anonymously at trial, in light of what can

only be described as extraordinary circumstances.

III. Relief.

Doe #13 respectfully requests this Honorable Court to allow him

him testify at trial anonymously.

,

A. Jordan Rushie

[email protected]

Pa. Id. 209066

Mulvihill & Rushie LLC

2424 East York Street Suite 316

Philadelphia, PA 19125

215.385.5291

Attorneys for Defendant John Doe #13



5

mailto:[email protected]:[email protected]:[email protected]


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Certificate of Service

I, A. Jordan Rushie, certify that I served a copy of John Doe #13s

Unopposed Motion in Limine to Testify Anonymously on all parties

of record via the electronic filing system.

A. Jordan Rushie

Dated: May 30, 2013



6



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Exhibit A



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5/30/13 12:BC News - US judge orders piracy trial to test IP evidence

Page ttp://www.bbc.co.uk/news/technology-19887765

TECHNOLOGY

9 October 2012 Last updated at 12:59 ET

US judge orders piracy trial to test IP evidence

A landmark case in the US will test whether internet piracy claims made by copyright firms will stand up in court.

Such cases rely on identifying the IP address of machines from which content was illegally downloaded as evidence of wrongdo

Experts have questioned whether the IP address is sufficient evidence because it identifies an internet connection rather than andividual.

An adult film studio must take cases to court, a judge has ruled.

Malibu Media has instigated 349 mass lawsuits, 43 in Pennsylvania this year.

Most of the cases are settled out of court.

n one lawsuit, five of the anonymous defendants protested when their internet service providers were ordered to reveal their

dentities.

n a motion filed to the court they accuse Malibu Media of pursuing the cases "to extort settlements".

Judge Michael Baylson, of the Pennsylvania District Court, summarised their issues: "Among other things, the declaration asser

hat the BitTorrent software does not work in the manner plaintiff alleges, and that a mere subscriber to an ISP is not necessaril

copyright infringer, with explanations as to how computer-based technology would allow non-subscribers to access a particular

address."

He went on: "In other words... there is no reason to assume an ISP subscriber is the same person who may be using BitTorrent

download the alleged copyrighter material."

Because of these doubts, he said that a trial was needed "to decide who's right".

Because an IP address is assigned to a connection rather than a device it is often unclear who is using it. It is also possible, if a

householder has not secured his or her wi-fi connection, for a neighbour or passerby to use it.

The TorrentFreak news site, which first reported the news, said: "Without a doubt, the trial is expected to set an important

precedent."

Disrepute

http://www.bbc.co.uk/news/http://www.bbc.co.uk/news/http://torrentfreak.com/finally-bittorrent-piracy-evidence-to-be-tested-in-court-121008/http://www.bbc.co.uk/news/


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5/30/13 12:BC News - US judge orders piracy trial to test IP evidence

Page ttp://www.bbc.co.uk/news/technology-19887765

ncreasingly copyright holders in the US have begun mass lawsuits against thousands of individuals accusing them of illegally

downloading copyrighted material via file-sharing service BitTorrent.

By studying BitTorrent sites the copyright owners gather IP addresses linked to illegal files. Via court orders they force ISPs to

reveal the identities of the owners of the computers.

The UK faced a similar case in 2011 when solicitor Andrew Crossley brought a trial against a group of alleged illegal downloade

The use of IP evidence was raised but the focus of the case became the way ACS Law had conducted itself, described by the

udge as "amateurish and slipshod".

Judge Colin Birss QC accused Mr Crossley of bringing the "legal profession into disrepute" and the case was dismissed.

Currently, UK-based Ben Dover Productions is pursing claims against 2,845 O2 customers accused of illegally downloading

pornographic films.

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Exhibit B



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5/30/13 12:upreme Court Lets Verdict Stand in Recording Industry Case Against Downloader - ABC News

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Supreme Court Lets Verdict Stand in Recording Industry CaseAgainst Downloader

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When Jammie Thomas-Rasset received a letter in 2005 accusing her of

downloading and sharing copyrighted music, she was given two options

from the lawyer behind the letter: Settle for $5,000 or be sued.

But Thomas-Rasset, of Brainerd, Minn., said she had never heard of the

music downloading site Kazaa cited in the letter, nor the songs the

Recording Industry Association of America had accused her of sharing.

Refusing to settle, Thomas-Rasset became the first person to challenge a

file-sharing lawsuit brought by the RIAA -- that decision to fight resulted

in a $222,000 jury verdict against her.

On Monday the U.S. Supreme Court declined to hear Thomas-Rasset's

appeal of the verdict. She'd petitioned the high court on the grounds that

the damages against her were "excessive" and disproportionate to any

damage she'd wrought on the recording industry.

"It's an empty victory for the recording industry," Thomas-Rasset told

Jammie Thomas of Brainerd, Minn., right, leaves a federal courthouse with her attorney Brian Toder, after a juryreturned a verdict against her in her civil trial for unauthorized downloading of copyrighted music, in this Oct. 4, 2007photo. (Julia Cheng/AP Photo)

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ABC News. "If they want to come after me, they'll find I have no assets."

The RIAA, in a statement to ABC News, said, "We appreciate the court's

decision, and are pleased that the legal case is finally over. We've been

willing to settle this case from day one and remain willing to do so."

Thomas-Rasset has maintained that one of her children was responsible

for the illegal downloads from her computer. The RIAA said that Thomas-

Rasset had been caught downloading more than 1,700 songs -- it brought

legal action on 24 of them.

The RIAA also said that Thomas-Rasset had replaced an old hard drive

during its investigation, and that after she refused the initial $5,000

settlement, it had offered her another offer to settle for $25,000, money

that would have gone to the charity MusiCares. Thomas-Rasset passed on

this offer too.

From 2004 to 2009, the RIAA estimated that approximately 30 billion

songs had been illegally downloaded on file-sharing networks, costing the

recording industry billions. During that period, the industry filed

thousands of lawsuits against people who had been getting their music

without permission or payment. The majority of these cases were settled

for about $3,500 each, but two defendants opted to fight the charges incourt.

Besides Thomas-Rasset, who was the first challenger, the other

defendant, who is still waging his case in court, is former Boston

University student Joel Tenenbaum. He currently owes the recording

industry $675,000, a judgment the Supreme Court also let stand.

Kiwi Camara, a Houston lawyer who represents Thomas-Rasset, told ABC

News that her fight was never about money.

"It's not fair or legal that an industry can go and pluck a defendant out at

random and punish them for file-sharing, an act committed by millions of

Americans," said Camara.

Camara said the $222,000 judgment, which was once almost $2 million,

wasn't tied to what his client did.

"It's just a made-up number," said Camara. "The recording industry is

making a public display by pursuing this case, trying to show people that

they should be afraid."

Camara said he was disappointed with the Supreme Court's decision, but

sees another opening for Thomas-Rasset.

Tenenbaum, who Camara is also representing, still has a case before the

U.S. Circuit Court of Appeals. A victory for Tenenbaum could signal a

victory for Thomas-Rasset, who said she doesn't worry about the

judgment against her.

"I can't go back in time and prevent this from happening," she said. "I live

my life. It is what it is."

The Associated Press contributed to this story.

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21/24

Exhibit C



22/24

5/30/13 12:ourt confirms $675,000 fine for sharing 30 songs The Register

Page ttp://www.theregister.co.uk/2012/08/24/tenenbaum_riaa_verdict/

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Court confirms $675,000 fine for sharing 30 songs

Tenenbaum is toast in haggle with big media

By Iain Thomson in San Francisco Get more from this author

Posted in Media, 24th August 2012 19:07 GMT

Watch Now : Virtual Machine Movement with Hyper-V

Joel Tenenbaum has lost his request for a mistrial in his long-running case against the music industry

over sharing music and now faces financial ruin.

The Massachusetts court declined his request for a mistrial and confirmed he will have to pay $675,000

in fines after being found guilty of sharing 30 songs on the Kazaa network. That's $22,500 per track.

In Friday's ruling, US District Court Judge Rya W.

Zobel told Tenenbaum that the award against him was

not excessive and he should be thankful he didnt have

to pay more.

"The award of $22,500 per infringement not only was

at the low end of the range only 15% of the statutory

maximum for willful infringement, but was below the

statutory maximum for non-willful infringement," the

ruling states. "Considering all of the aforementioned

evidence, the jurys damage award was not so

excessive as to merit remittitur.

The aforementioned evidence on the willful or non-

willful nature of the office refers to Tenenbaum's testimony. After first denying the charges, he trying to

blame the offense on his sister (which could make for fairly awkward family get-together), a house guest

or a possible burglar. Tenenbaum later admitted to sharing the music from 1999 to 2007, and could

potentially have faced a bill for over $4.5m for the 30 songs he was found guilty over.

Tenenbaum was 16 when he first got a warning letter from Sony's legal team, which initially demanded

$5,250 for downloading seven songs from Napster and Kazaa. His counter-offer of $500 was rejected

and the case first went to court in 2007.

Stepping up to his defense came Harvard law professor Charles Nesson, who promised to "put the

record industry on trial," and recruited a team of eager young students to help out. After Tenenbaum was

found guilty in 2009 they appealed the case, eventually getting the damages cut to $67,500 after the

original verdict was ruled "unconstitutionally excessive."

Flushed with this success, they appealed again for the Supreme Court to hear the case. If this was a bad

movie script, the plucky team would have saved the day in a dramatic court-room showdown. Instead the

Supremes turned the request down, and with Friday's verdict confirming the full damages Tenenbaum

now has little chance of avoiding financial ruin.

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One could argue that Tenenbaum was spectacularly unlucky. There isnt enough money in the world to

pay the RIAA's members if all the people who had been file sharing at the time had to pay $22,500 per

track, and similar fees for stolen apps and games. As has been pointed out, the RIAA has a tenuous

grasp on economic realities.

But Tenenbaum made his own luck, to a degree. His conduct in the case was hardly smart and his legal

team's strategy of doubling down has also been highly criticized, not least by some atEl Reg, for failingto work on winnable portions of the case.

Tenenbaum is now left with few options. He can appeal the verdict, which looks likely to fail, or

presumably declare bankruptcy since he's unlikely to have that amount of money stuffed under a

mattress. Meanwhile musicians still arent getting paid, the media industry seems no closer to finding a

workable solution to piracy, and warning letters from lawyers are becoming ever more common.

Watch Now : Virtual Machine Movement with Hyper-V

READ MORE Piracy Kazaa Riaa Nesson Joel Tenenbaum

Related storiesThomas-Rasset faces $220,000 file-sharing bill after losing appeal(11 September 2012)BREAKING US appeal dismissed in Dotcom case(16 August 2012)Google to skew search results to punish PIRATES(11 August 2012)Racketeering suit filed over smut-piracy charges(10 July 2012)Mp3Tunes files for bankruptcy(14 May 2012)Rapidshare tells world+dog: Stop PIRACY now!(20 April 2012)

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