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Wis. judges raise concerns over pornography ‘copyright troll’ (UPDATE)

By: Eric Heisig//November 5, 2013//

Wis. judges raise concerns over pornography ‘copyright troll’ (UPDATE)

By: Eric Heisig//November 5, 2013//

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A so-called “porn troll” has filed 60 lawsuits in Wisconsin’s federal courts since February, accusing Internet users of illegally downloading erotic movies.

California-based Malibu Media LLC, which owns the website X-Art and claims in court filings to make “sophisticated erotica,” has made a practice of filing copyright lawsuits against defendants only identified by an Internet Protocol address.

The suits typically include a list of pornographic movie titles a defendant allegedly downloaded illegally. By doing this, some judges and attorneys say, the company is trying to force a settlement by threatening to reveal a defendant’s name and embarrass them.

Critics such as the Electronic Frontier Foundation have called the company a “porn troll” and “copyright troll” because it allegedly seeks to shake down defendants with the threat of a long period of litigation.

“The cost of defense,” Kurt Opsahl, a senior staff attorney with the EFF, said, “is going to be much higher than the cost of settlement.”

Malibu Media’s owners reject such labels, however, claiming that they must protect the ownership of their films.

Opsahl said the most prolific litigants in copyright law involve pornography. And Malibu Media, he said, is one of the most litigious of the bunch.

Several Wisconsin federal judges have started to express frustration with the way the cases are handled. Four federal judges and a magistrate judge recently noted their concerns in court opinions.

“… these internet copyright infringement cases already give off an air of extortion,” Western District Chief Judge William Conley wrote in a Sept. 10 order, “albeit legitimate since (at least as alleged) each ‘John Doe’ defendant did violate plaintiff’s copyrights.”

According to court opinions, the biggest sticking point among the judges was Malibu’s inclusion in suits of a second list of movies – most commonly referred to as “Exhibit C” – that were purportedly illegally downloaded, yet not owned by the company.

The lists, according to Conley’s Sept. 10 order, typically included movies with more salacious titles such as “Lada.Nice … Young.Girl” and “Dirty … Stories 5.” Conley wrote such titles were included for no other reasons “except to harass and embarrass defendants into early settlements.”

He ordered the company’s attorney, Mary Schulz of Geneva, Ill., to pay $200 in sanctions for each of the 11 cases it brought forth in the Western District.

Eastern District Judges Rudolph Randa and Lynn Adelman are allowing defendants in several cases to proceed anonymously.

“Revealing [a] defendant’s identity will cause defendant some degree of harm,” Adelman wrote in an order issued Thursday, “and could cause him or her to forfeit meritorious defenses and settle the case to avoid public embarrassment.”

And with the proliferation of these cases – which totaled more than 1,300 cases since 2012 – more judges are starting to take notice.

Jerome Buting, an attorney with Buting & Williams SC who is handling two such cases in the Eastern District, said “some of the courts have found that they’re really sort of predatory practices being followed.” He said judges are now looking more carefully at the lawsuits in order to issue more “thoughtful decisions” about how cases are brought forth and litigated.

Malibu’s attorneys did not return phone calls for comment. But an email attributed to Collette Field, who owns the company with her husband, Brigham, said several courts have deemed their claims legitimate.

“We … have every right,” the email stated, “to defend our copyrights in films that we work very hard to make and cost us millions of dollars a year to produce.”

In court filings the couple claimed they did not include lists of pornography titles in order to embarrass defendants into settling. The company has since stopped including such lists in new lawsuits.

Court filings also state that the company’s intention is to recoup the losses it has incurred with the proliferation of illegal downloading.

“Based on the number of infringements being committed each month, Malibu Media knows more people are watching its movies in 2013 than were watching its movies in previous years,” the company claimed in a June 26 court filing. “Nevertheless, Malibu Media’s subscriber base has not grown because of the theft.”

The tactics used by the company are similar to those used by the recording industry, copyright attorneys said. Companies would track down those who downloaded music illegally and offer a settlement with the threat of a long litigation process looming.

But Malibu Media’s lists of additional movie titles, Opsahl said, added a new wrinkle of embarrassment to the proceedings.

“Certainly you could imagine some song titles would be mildly embarrassing,” he said, “but nothing that rises to the level of pornographic titles.”

— Follow Eric on Twitter

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