Many people throughout New Jersey and other states have been receiving letters from a company called Malibu Media alleging copyright infringement. These communications usually threaten a potential lawsuit or claim that the defendant has been sued in Federal court.
Any person who receives a summons or other communication from their internet service provider (ISP) should not take it lightly. To avoid any serious consequences, a person should do two things: 1. Read the rest of this page, and; 2. call a qualified copyright infringement defense attorney right away.
Who is Malibu Media?
Malibu Media LLC is an adult movie company that produces films featured on the pornagraphic website X-Art.com. The company has spent years suing people for copyright infringement, alleging the defendants downloaded its films via peer-to-peer file sharing software such as BitTorrent.
Is Malibu Media Charging Me with a Crime?
While a lawsuit from Malibu Media alleges that the defendant committed the crime of copyright infringement, the company is not filing criminal charges. Instead, they are filing civil lawsuits in Federal court seeking money damages as a result of the illegal downloading.
Should I Ignore a Letter from Malibu Media? How Much Money is at Stake?
No. In fact, it is best to contact an attorney to help handle this situation as soon as possible. Those who do not respond to the lawsuit could end up with a default judgement against them. Statutory damages for non-willful infringement max out at $30,000 per work and $150,000 per work (17 U.S. Code § 504) so there’s a serious amount of money on the line if multiple films were downloaded. When it comes to statutory damages the plaintiff does not have to prove how much money they actually lost. All they need to prove is that the plaintiff infringed.
Why and How is Malibu Media Targeting Me?
Malibu Media is claiming that the defendants illegally pirated its content, rather than pay for them through its website. As such, it is filing these claims against numerous people in the hopes of deterring any future piracy and recouping losses from past instances of piracy.
The company targets individuals based on their IP address (like a phone number, but for one’s computer), which its proprietary technology has detected as being associated with illegal filesharing. These are usually filed en masse and rather than naming the defendant in the first instance all they can do is list the IP address because the user associated with that IP address is confidential until that information is divulged through them via a subpoena (see below). Once they do obtain the name of the defendant they will amend the complaint to include the actual defendant’s name.
Is Malibu Media a Copyright Troll?
On the one hand, legal scholars agree that the methods used by Malibu Media are tantamount to an extortion scheme – after all the defendant often concludes that they have no choice but to cough up substantial sums otherwise their name will be made public and they will be publicly humiliated by having their name associated with illegally downloaded pornography. On the other hand, copyright infringement is illegal both under civil and criminal law and the plaintiff argues that they have every right and duty to uphold their copyrights and intellectual property which they invested substantial sums to create.
What Does Malibu Media Really Want?
Money, plain and simple. The company is hoping that people will settle the case rather than undergo a lengthy lawsuit that could disrupt their lives – and cost a lot less money than litigation, on both sides. The firm is also hoping people will be embarrassed that they are being sued for downloading porn and will pay money to keep things quiet.
How Does Malibu Ultimately Get My Information? Why Did Malibu Media Subpoena My ISP?
Often victims of Malibu Media receive a notice from their internet service provider (ISP) stating that the ISP has subpoenaed by Malibu for information. When this happens, it is because Malibu Media is trying to discover the name of the individual whose IP address it has identified (for now, it only has the IP address and physical address). If that subpoena is not successfully opposed, the ISP will have to divulge the defendant’s identity to the plaintiff and they can amend the complaint, as above, and serve the defendant personally with the lawsuit and ultimately obtain a judgement.
How Quickly do I Have to Act? What is a Default Judgement?
Once a certain amount of time passes without a response, the plaintiff can move for summary judgement which means that the court can decide in their favor without undergoing a trial. If that happens, a monetary judgement can be issued and you can be required to pay without ever having your “day in court”. For some people, the default judgement is the first time they are receiving any kind of communication from Malibu Media. This is sometimes the result of so-called “sewer service”—in other words, the process server failed to do his/her job correctly. In these cases, a motion could be made in the court to dismiss the complaint on the grounds of improper service (though it will usually be able to be re-filed and corrected).
How Can I Defend Myself Against a Copyright Infringement Lawsuit from Malibu Media?
Whether a person has downloaded the copyrighted works or not, it is imperative that anyone facing such a lawsuit hire an experienced copyright infringement attorney to defend themselves.
Here are the available options for dealing with a claim for copyright infringement:
- Ignore it and hope it “goes away”. This approach will likely lead to a default judgement. While a civil judgement can’t land you in jail, it means any assets you have (including wages) can be the subject of collection enforcement. Once an actual lawsuit has been filed, Malibu isn’t just going to fold their tent and withdraw the lawsuit without good reason.
- File a motion to quash or a motion to sever and dismiss. In the earlier years of this genre of litigation, Malibu often filed mass lawsuits naming a bunch of IP addresses in the same lawsuit. This gave rise to motions to quash or sever – meaning to break the lawsuit down into individual lawsuits (including a successful motion by Rosenblum Law). Unfortunately, in recent years, Malibu wised up and starting suing people individually, so the option of making these motions is often unavailable.
- Litigate and fight it out at trial. This is not only an expensive and time-consuming route (not only in terms of legal fees but you will likely have to hire expensive experts in computer forensics etc.) but you also run the risk that you lose, and with the statutory damages on the line (as above) it could add up to a tidy sum. Of course, there may be instances in which a trial is inevitable. If that happens, it is critical to have a knowledgeable attorney who can fight tooth-and-nail to win a favorable judgement or settlement. But remember this is often a David-and-Goliath situation where the party with the deeper pockets prevails.
- Settle. This is usually the quickest and least expensive option. Let’s face it – Malibu doesn’t want to drag it out and spend a fortune on legal fees and litigation costs any more than you do. If the parties can reach an amicable settlement, it’s a win-win (or at least not a lose-lose).
If you or someone you love is being accused of copyright infringement by Malibu Media LLC, contact the attorneys of Rosenblum Law right away. Our skilled copyright infringement attorneys have helped many clients defend against allegations by Malibu Media. Email us or call 888-815-364 for a free consultation today.