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.