Thursday, June 13, 2013

Bellwether Trial: Why It Was A Bust

So there have been a number of good opinions given about the recent bellwether trial in Malibu Media v. Does, Case No. 12-cv-02088 (PAED). For what it's worth, here's mine.

This wasn't a real trial.

If anyone continues to labor under the delusion that the trial was actually contested, just take a look at this post by Jordan Rushie. In it, Mr. Rushie says things like:
Porn is copyrightable. Period. 
[K]udos to Malibu Media’s counsel, Keith Lipscomb and Chris Fiore, who demonstrated that they are exceptional litigators and trial lawyers. It was a hard fought battle among worthy adversaries. 
So, if you have been targeted in a bittorrent lawsuit, there is an exceptionally high chance that the material was infringed on using your internet. 
Even though an IP address isn’t a person, evidence that infringement occurred via that IP address is enough to get into court. 
I know you’re not going to want to hear this, but if you downloaded a copyrighted work off of bittorrent and got caught, you should probably consider a settlement very seriously.
If you read that article, you could pretty easily conclude that Mr. Rushie was one of the Plaintiff's lawyers (like I did). Problem is, he actually represented one of the defendants!

What?!?!? Are you serious?!?!?

I've had several trials. I'm not bragging, but there was only one which I would legitimately say we lost. What I will tell you this: The day after that trial, the absolute last thing on my mind was writing an article about how great a job the other side did and how my own client had no chance of ever winning.

What?!!? Seriously?!?!

This illustrates my point. Even the lawyer for one of the defendants is making things up about how well it went for the plaintiff. It feels like everyone involved was on the same side.

So let's examine the reality.

The parties all agreed to waive their right to a jury. Who does that? People afraid of a jury, that's who. In a case where the thrust of your case is relying on the common sense and decency of common folk to say "this just ain't right," you don't waive a jury. Ever.

Mr. Lipscomb told Judge Baylson at the June 6 hearing that Malibu Media had already settled with two of the defendants (including Mr. Rushie's) but wanted the judge to enter a "final judgment" against them. Then Mr. Lipscomb told Judge Baylson that Malibu Media and Bryan White (Doe 16) had already reached a so-called high/low agreement so Mr. White wouldn't be paying the whole damages amount anyway, regardless of what the judge said.

In sum, all of the defendants stipulated to liability before the trial. Plaintiff had already agreed not to seek damages against two of the three defendants. The third defendant stipulated to liability. Malibu Media and the third defendant asked the judge to enter a finding on damages, even though they had already agreed on what he would pay.

So there was absolutely nothing at issue during the trial. Not liability. Not damages. Nothing.

Then there was the 'trial' itself. The only party to actually put on a witness was Malibu Media. None of the defendants even cross-examined a witness. Really?

What kind of trial is it where the defendant doesn't challenge any of the plaintiff's witnesses or even put on any witnesses of its own? A sham, that's what.

So why was there even a trial? I have no idea.

Actually, I do have an idea. It was all about Malibu Media trying to get Judge Baylson to write a document that Malibu Media could use in all its demand letters from now on. I'll point out that, to his credit, Judge Baylson had to tell Lipscomb numerous times that he would not be Lipscomb's advertising spokesman. I think what he said was he wasn't interested in writing anything that was "commercially valuable" to Malibu Media.

So what does this case mean for those of us who legitimately defend innocent people wrongfully accused of downloading unauthorized stuff by bittorrent?

Absolutely nothing.

In fact, after listening to most of the proceedings, I feel even more confident that my clients have nothing to worry about from Lipscomb's machine.

I have strong feelings about how this case went. It showed a lot of promise early on, but in the end, it was nothing but a bust. None of the defendants actually contested any of the relevant facts; they all admitted liability in order to settle; and we still don't know how an actual bittorrent trial will go.

My hope is that a defendant who gets one of these letters will have the fortitude to stand up for what is right and push the issue all the way to a real trial in front of a real jury. Only then will we know how strong the plaintiff's case really is.

But one this is certain: We still haven't had a real bittorrent trial.

Tuesday, June 11, 2013

$112,500 Verdict For Copyright Infringement in Bellwether Case

So the so-called bellwether trial started and ended today. It really was sort of a bust after essentially everyone settled before trial and all the defendants stipulated to judgments. End of the day, the case was a huge disappointment.

All that said, the judge entered a verdict against the one final Doe (Brian White, I think was his name) for his role in the matter. I should point out that Mr. White made the monumental mistake of lying under oath and forcing Lipscomb to prove it. The judge really, really didn't like that. I've said it many times before, if you lie in federal litigation, someone will eventually prove it and you will be in much deeper trouble than before.

Back to the verdict. Judge Baylson entered a verdict against Mr. White for $112,500. Here's how the judge got at that number:

$750 is the statutory minimum.

He trebled that number based on essentially the nature of the infringement (kind of willful) for $2,250 per infringement.

Mr. White was charged with five infringements for a total of $11,250.

But here's the kicker: Judge Baylson multiplied that number by ten because Mr. White lied under oath about the infringement. So his perjury turned an $11,250 verdict into a $112,500 verdict.

What is the moral of this story? Well, first, don't infringe someone's copyrights! That should be the first lesson. The second lesson? Don't lie under oath!

I'm really embarrassed that I even have to say that last part, but really? What was Mr. White thinking? Breaking Bad, maybe?

I may try to make the audio recordings available, but it's late and I don't have the energy right now.

Tuesday, June 4, 2013

Alston & Bird Disqualified as Trial Counsel

I know this blog is typically about copyright issues, but this one is really just a general litigation issue which could, theoretically, apply even in copyright cases. This post is about a lawyer's duty of loyalty to former clients.

The law firm of Alston & Bird originally represented Malico, Inc. in some patent prosecution matters that ended about 2010. At about the same time, Malico had brought suit against Cooler Master USA, Inc. for patent infringement. The patent-in-suit was not one that Alston & Bird had worked on. Cooler Master was represented first by a different firm. But after a couple of firm changes, Cooler Master ultimately hired Alston & Bird to represent it in the suit that was brought by Malico.

Malico objected that Alston & Bird could not represent Cooler Master against Malico because Alston & Bird had an ongoing duty of loyalty to Malico. Malico moved to disqualify Alston & Bird, and Cooler Master naturally objected. Cooler Master argued that Alston & Bird's representation of Malico was long over and it didn't really have access to any confidential information of Malico. Besides, the lawyer who represented Malico was in North Carolina, not California where the law suit was pending.

Judge Seeborg disagreed.

Finding Malico's argument persuasive, Judge Seeborg concluded that because the patents that Alston & Bird had worked on for Malico in the past were substantially similar to the patent-in-suit, Alston & Bird was required to have obtained a written conflict waiver from Malico, which it did not. Accordingly, Judge Seeborg disqualified Alston & Bird from representing Cooler Master against Malico.

I point this out to illustrate the serious issues that can arise from failing to respect the ongoing duty of loyalty to former clients. All too often, a lawyer's desire to bring in that new, big client clouds his judgment and causes him to do things that he shouldn't. But sometimes, the left hand just doesn't know what the right hand is doing. I think this case is more like the latter, but the result is the same.