Malibu Media Motion To Proceed Bellweather

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Malibu Media, LLC,
Plainti,
v. Civil Action No. 12-2078
John Does 1, 13, 14, and 16,
Defendants.
Order
Today, this day of 201 3, a ie 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.
vv rnv couvr:
Michael M. Baylson, U.S.D.J.
Case 2:12-cv-02078-MMB Document 157 Filed 05/30/13 Page 1 of 24
Malibu Media, LLC,
Plainti,
John Does 1, 13, 14, and 16,
Defendants.
Defendant John Doe #13s Unopposed Motion in Limine to
Testify Anonymously at Trial
Defendant John Doe #13, through his counsel, A. Jordan Rushie,
requests this Honorable Court to allow him to testify at trial
anonymously and says in support:
1. John Doe #13 admits that he made a grave mistake when he
downloaded thirty X-Art movies over the internet using bittor-
rent, iniinging on Malibu Medias copyrights.
2. What he once viewed as downloading some pornographic movies
in the privacy of his home has since turned out to be the biggest
mistake of his life.
3. Doe #13 is currently facing a high prole Bellwether trial that he
did not ask for, which will be the rst pornographic bittorrent
case ever tried to a jury verdict.
4. News of the the Bellwether Trial has already grabbed the media
and blogosphere by re, 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.
7. The Plainti accepts a reasonable settlement for having their
movies shared over a peer-to-peer network, and someone like
John Doe #13 learns that it is not okay to pirate copyrighted ma-
terial iom the internet, even though internet piracy is com-
monplace and widespread.
8. For whatever reason, Doe #13s previous counsel
1
decided to le
an ill advised motion to quash rather than engage the plainti in
good faith settlement negotiations.
9. On October 3, 2012, this Honorable Court designated the case
for a Bellwether Trial.
10. The purpose of the Bellwether Trial was to test the suciency of
the plaintis evidence, because it has led copyright cases in
this district but never tried one to a jury verdict.
11. In doing so, this Honorable Court held that if Plainti decides
instead to continue to pick o individual John Does, for con-
dential settlements, the Court may draw an inference that Plain-
ti is not serious about proving its claims, or is unable to do
so.
12. Without the prospect of settlement, the Bellwether Order lei
Doe #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 plaintis attorneys fees
under 17 U.S.C. 504(c).
13. Although some have suggested that a peer-to-peer le sharing
case could never be tried to a verdict, they are wrong.
14. Capitol v. Thomas
2
and Sony BMG v. Tenebaum
3
, two le sharing copy-
right iniingement 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
1
Counsel did not enter his appearance, and Doe #13 signed the motion pro se.
2
Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899 (8th Cir. Minn. 2012)
3
Sony BMG Music Entertainment v. Tenebaum,No. 07cv11446-NG (D. Mass. Dec. 7,
2009).
sulted in six gure verdicts for the plainti, along with wide-
spread attention to the defendants in the media.
15. In Thomas, Jammie Thomas was found liable for copyright in-
iingement by a jury and ordered to pay $222,000 in statutory
damages.
16. In Tenebaum, a jury entered a verdict of $675,000 against a man
accused of sharing 30 songs
4
.
17. The Thomas-Rasset and Tenebaum cases have been covered so widely
in the media that the defendants are practically household
names, synonymous with the futility of ghting meritorious
copyright iniingement cases. (See, e.g., Exhibits B and C.)
18. Claiming innocence would have required Doe #13 to commit
perjury in the civil discovery process, while going to trial would
expose Doe #13 to signicant statutory damages under 17 U.S.C.
504(c).
19. However, at a status conference held on November 29, 2012,
this Honorable Court claried its Bellwether Order and held
that it would allow the defendants to settle with the Malibu.
20.Shortly aier, Doe #13s counsel approached Plaintis counsel
to discuss settling the case.
21. Doe #13 admitted liability and settled with the plainti 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 of
Malibus pornographic movies using bittorrent, iniinging on
their 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
4
Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487 (1st Cir. Mass. 2011)
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 pending
throughout the country, and revealing the name of one John
Does will not further the public interest.
27. Further, as this Honorable Court recognized in its October 3,
2012 Order setting the Bellwether trial, the ve John Does who
will be defendants in the Bellwether trial are, in a sense, being
penalized for ling 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 defendant
in the rst 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 on
litigation.
30.Further, the trial transcript and any potential appeal will almost
certainly be used in other bittorrent cases in the future.
31. Forcing John Doe #13 to reveal his name to the public in a high
prole 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.
wnvvvvovv, Defendant, John Doe #13, respectfully requests this
Honorable Court to allow him to proceed anonymously at trial.
4
vvsvvcrvu::v suvxi rrvu,
A. Jordan Rushie
Jordan@FishtownLaw.com
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
Malibu Media, LLC,
Plainti,
John Does 1, 13, and 16,
Defendants.
Plaintis Memorandum of Law in Support of His Motion in
Limine to Proceed Anonymously at Trial
Culpae poenae par esto - Let the punishment t 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-
iingements, but the defendants refused to settle. Nevertheless, they
decided to push their cases to trial. Their actions resulted in six g-
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 rst porno-
graphic bittorent case to be tried to a verdict.
Setting the stage, Malibu Media les lawsuits against John Doe de-
fendants to enforce its rights under the Copyright Act. Malibu is
entitled to signicant statutory signicant statutory damages against
iniingers under 17 U.S.C. 504(c).
With that context in mind, many bittorrent copyright iniingement
cases settle for a reasonable amount of money at the outset
enough to compensate the plainti and to deter the internet user
iom further iniingement, 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 plainti and defendants best interest.
That was certainly the case here.
While some have suggested that a peer-to-peer le sharing case
could never be proven in court, they are wrong. An iniinger like
Doe #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 de intellectual property attorney,
they are oien told the cautionary tale of Thomas and Tenenbaum, along
with how the civil discovery process works. A quick and reasonable
settlement is oien determined to be the best option.
At rst glance this case seemed ordinary. But for whatever reason,
Doe #13s prior counsel led an ill-advised motion to quash Mali-
bus subpoena rather than trying to engage Plaintis 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 dierences. First, Doe #13 did not ask
for this ght. Second, this is the rst 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
As this Honorable Court recognized in its October 3, 2012 Bell-
wether Order, the ve John Does who will be defendants in the
Bellwether trial are, in a sense, being penalized for ling 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 aier 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 o the internet, Doe
#13 will be known as someone who was sued and found liable for
downloading copyrighted pornography.
It is respectfully submitted that Doe 13s mistakes should not have
such far reaching ramications. 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 t 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 in
public. Doe v. Megless. 654. F.3d 404 (3d. Cir. 2011). However, a
litigant may proceed anonymously when he or she shows there is a
reasonable fear of severe harm that outweighs the public's interest in
open judicial proceedings. Id. In Megless, the Third Circuit, adopted
the Provident Life test for weigh the litigant's need for anonymity
against 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 where
courts have allowed pseudonyms include cases involving 'abortion,
birth control, transsexuality, mental illness, welfare rights of ille-
3
gitimate children, AIDS, and homosexuality.'" Id. (citing Doe 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 York
allowed defendants to proceed anonymously, holding that:
[o]n the other side of the equation, there is an atypically weak
public interest in knowing the [defendants] identit[y]. Sealed
Plainti, 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 iniingement alleged here. In re BitTorrent,
2012 WL 1570765 at *1. In fact, a Westlaw search reveals that
this plainti has brought scores of similar actions involving
thousands of John Doe defendants. Thus, in this instance, the
incremental 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 Plainti test to this case reveals that the
defendants interest in anonymity substantially outweighs the
public interest in the single data point of the defendants
identity.
There are many exceptional circumstances in this case. Doe #13 has
already been served with the lawsuit, allocated to the allegations in
the Amended Complaint, and settled with the plainti. The only
reason a trial is happening because the case is part of a Bellwether.
The plainti and other parties have agreed to the relief requested,
so there is no prejudice to any party, nor could granting this motion
be subject to an appeal.
Further, there is little need for the public to learn John Doe #13s
identity. He is one of thousands of people around the country who
downloaded copyrighted pornography iom the internet and was
caught. He will testify at trial that the allegations in the Amended
Complaint are true. To that end, the purpose of the Bellwether has
been 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
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.
vvsvvcrvu::v suvxi rrvu,
A. Jordan Rushie
Jordan@FishtownLaw.com
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
Certicate 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 ling system.

A. Jordan Rushie
Dated: May 30, 2013
6
Exhibit A
5/30/13 12:29 PM BBC News - US judge orders piracy trial to test IP evidence
Page 1 of 2 http://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 wrongdoing.
Experts have questioned whether the IP address is sufficient evidence because it identifies an internet connection rather than an
individual.
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.
In one lawsuit, five of the anonymous defendants protested when their internet service providers were ordered to reveal their
identities.
In 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 asserts
that the BitTorrent software does not work in the manner plaintiff alleges, and that a mere subscriber to an ISP is not necessarily a
copyright infringer, with explanations as to how computer-based technology would allow non-subscribers to access a particular IP
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 to
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
5/30/13 12:29 PM BBC News - US judge orders piracy trial to test IP evidence
Page 2 of 2 http://www.bbc.co.uk/news/technology-19887765
Increasingly 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 downloaders.
The use of IP evidence was raised but the focus of the case became the way ACS Law had conducted itself, described by the
judge 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.
More Technology stories
Start button returns to Windows 8 [/news/technology-22714048]
The Start button is to return to Microsoft's Windows operating system's desktop mode, a move seen by some as a major design backtrack by the firm.
Samsung launches Galaxy S4 Mini [/news/technology-22715713]
Digital cash arrests cause 'pain' [/news/technology-22699871]
BBC 2013 The BBC is not responsible for the content
of external sites. Read more.
Exhibit B
5/30/13 12:31 PM Supreme Court Lets Verdict Stand in Recording Industry Case Against Downloader - ABC News
Page 1 of 4 http://abcnews.go.com/US/file-sharers-battle-recording-industry-continues/story?id=18765909#.Uad-wJXrelo
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Supreme Court Lets Verdict Stand in Recording Industry Case
Against 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 jury
returned a verdict against her in her civil trial for unauthorized downloading of copyrighted music, in this Oct. 4, 2007
photo. (Julia Cheng/AP Photo)
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March 19, 2013
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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 in
court.
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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Exhibit C
5/30/13 12:29 PM Court confirms $675,000 fine for sharing 30 songs The Register
Page 1 of 3 http://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
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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 at El Reg, for failing
to 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

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