MANHATTAN (CN) – Given its “history of abuse of the court process,” a California pornography company that’s filed 900 copyright lawsuits this year cannot subpoena Time Warner without a hearing, a federal judge ruled.
Malibu Media LLC, owned by husband-and-wife team Collette and Bringham Field, is the purveyor of the erotica site “x-art.com,” and the bane of countless John Does across the United States.
With help from private investigators, Malibu uncovers the IP addresses of BitTorrent users who allegedly download videos, and sues the owners. It uses the discovery process to unmask the accused pirates, and many settle to avoid public humiliation and legal fees.
Malibu Media has filed more than 1,500 lawsuits since 2014, according to the Courthouse News database, 914 this year alone.
One of Malibu’s recent lawsuits targets a Time Warner user in the Southern District of New York who shared a file of 127 Malibu movies, with titles such as “Cum In Get Wet” and “Tie Her Up For Me.”
On Monday, U.S. District Judge Alvin Hellerstein wrote that his colleagues on the federal bench approach these cases with increasing caution.
“In 2012, judges in the Southern District and across the country began awakening to the danger of copyright trolls, especially in the context of pornography,” Hellerstein wrote.
One of those cases unfolded in New York before U.S. District Judge Alison Nathan, who worried that the hunt for illegal downloaders of “My Little Panties” would turn up “ false positives .”
Lawyers for Digital Sin, the producers of that film, acknowledged in court that 30 percent of the IP addresses were bystanders, such as the children, relatives, lovers or neighbors of the downloaders.
The late Judge Harold Baer, who died last year at 81, worried that “misidentified” or “innocent” targets of these subpoenas “may be coerced into an unjust settlement” to avoid embarrassing publicity.
Of the frequent filers in the pornography world, Malibu has led the pack for the past three years.
“Malibu is a prolific litigant: Between January and May 2014, for example, Malibu was responsible for 38 percent of copyright lawsuits filed in the United States,” Hellerstein wrote, citing a New Yorker article, “The Biggest Filer of Copyright Lawsuits? This Erotic Web Site.”
Given Malibu’s preference for “quick, out-of-court settlements,” Hellerstein said, “almost none” of its cases “ever reaches a hearing.”
One of its cases did make it to trial two years ago in the Eastern District of Pennsylvania, where the judge disputed the label of copyright troll.
“Malibu is not what has been referred to in the media and legal publications, and in the internet blogosphere, as a ‘copyright troll,'” Senior Judge Michael Baylson wrote in the ruling. “Rather, Malibu is an actual producer of adult films and owns valid copyrights, registered with the United States Copyright Office, in its works.”
But Hellerstein called Judge Baylson’s sentiments an outlier.
He cited an Ohio federal judge’s May 16 ruling that most of Malibu’s lawsuits “are dismissed even without the issuance of a summons. Malibu’s motive is to use the federal courts only to obtain identifying information in order to coerce fast settlements.”
Hellerstein added: “Judges regularly complain about Malibu.”
In a Wisconsin case, a federal judge sanctioned Malibu for listing “scandalous” titles such as “[Bestiality] Young Blond … Dog” – a video it did not own – to pressure a defendant into a settlement. (Brackets in Hellerstein’s citation.)
Malibu’s tactics are “clearly calculated to embarrass defendants,” Hellerstein wrote.
Citing the “Bestiality Young Blond” title, Hellerstein added, “the district court sanctioned Malibu when it learned that Malibu did not even own the copyrights for the titles; rather, it had gratuitously listed them to coerce larger, faster settlements by further shaming defendants.”
Other judges in Ohio and Brooklyn tried to shield the identities of Malibu’s defendants, but their attempts failed because the company “flagrantly disregarded” court orders, Hellerstein said.
So when Malibu tired to obtain a subpoena before a preliminary hearing, Hellerstein demanded that the usual procedures be followed.
“In light of Malibu’s history of abuse of court process and its failure to show ‘good cause,’ I decline to give it the benefit of an exception to the normal rules of discovery,” he wrote.
Malibu’s attorney Jackie James told Courthouse News in an email that Hellerstein’s opinion notes that “online privacy of digital media is a major problem today.”
“No fair minded person can reasonably expect performers to perform in 127 movies, as we allege were infringed here, and receive no compensation,” James wrote. “It is not fair to watch the newest episodes of ‘Game of Thrones’ after downloading off BitTorrent, and it is not fair to watch adult content without paying, either.”
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