The business known colloquially as "porn trolling" involves filing large numbers of lawsuits against defendants alleged to have downloaded pornographic films via BitTorrent. Business for one aggressive porn troll, Prenda Law, has ground to a halt after a major sanctions order, referral to criminal investigators, and more possible sanctions coming up. Other heavy litigants, including Malibu Media, have continued to sue apace.
But now Malibu has stumbled as well, and the company has been slapped with its own sanctions order. Malibu's common practice of including a roster of salaciously named porn films with each complaint—not Malibu films but other unrelated material—has raised the ire of US District Judge William Conley, who is overseeing several Malibu cases in Wisconsin.
Conley writes that he believes the practice was meant to "harass and intimidate" defendants into early settlements. Defense lawyer Erin Russell, working together with the Electronic Frontier Foundation, wrote a brief in support of sanctions; Malibu's lawyer Mary Schulz, working with Malibu attorney Keith Lipscomb, penned a brief explaining why they shouldn't be sanctioned.
The issue was originally flagged by a US Magistrate Judge in the same district, Stephen Crocker. Then several cases were consolidated under Judge Conley, who also considered the briefings about Malibu's too-explicit exhibits. Yesterday, Conley published his order, sanctioning Malibu $200 per case for a total of $2,200.
The problem with Exhibit C
In each lawsuit, Malibu has been including "Exhibit C," which lists other, presumably copyrighted, material downloaded by the same IP address as the accused.
That often includes pornographic material, with names far more lewd than the relatively tame Malibu Media titles that are being sued over. Malibu titles mentioned in this order include "Red Satin," "Dreams Come True," and "Tuesday Morning." By contrast, Conley noted, the Exhibit C titles often include "Lada.Nice... Young.Girl," "Dirty... Stories 5," and "[Bestiality] Young Blond... Dog (www.sickporn.in)."
That attachment serves no purpose and is "calculated principally to harass defendants," wrote Conley. Malibu said it had good reasons for attaching the exhibit. First of all, looking at other material helped it confirm that the defendant really was the right person rather than a houseguest, neighbor, or hacker. But that doesn't explain why Malibu didn't either file under seal, redact the most salacious titles, or provide the information to the defendant privately.
Malibu also argues it shouldn't be sanctioned, because there's no evidence it intended to harass anyone. After all, the company has never opposed a defendant who wanted to proceed anonymously, proving that it is not trying to publicly expose people. But the statements are harassment whether Malibu thinks so or not, ruled Conley. "Malibu Media’s denials do not pass the smell test, and any denial of improper motive by its counsel does not pass the laugh test," he wrote.
Even if it can't be shown that a Malibu lawyer "subjectively thought that he or she was engaging in harassment," the fact is there was no reason to submit these exhibits, and the act of using them can "substantially harass or embarrass the opposing party."
While his concern here is Exhibit C, Conley goes on to suggest that there are problems with the overall business model:
These Internet copyright infringement cases already give off an air of extortion, albeit legitimate, since (at least as alleged) each “John Doe” defendant did violate plaintiff’s copyrights. Counsel enforcing these rights for purveyors of pornographic films (even “classy” ones) by suing initially anonymous defendants must already be aware that these cases are fraught with circumstances that could embarrass the putative defendant should they become public and strongly influence his or her decision to settle even a meritless suit just to make the case go away before being publicly associated with their client’s film.
This should be enough. The court’s subpoena power may not be leveraged further by counsel to force earlier, larger settlements through explicit references to the alleged misuse of even more outrageous or potentially embarrassing materials copyrighted by a non-client.
The order also lifts stays that were entered into each of Malibu's 11 cases in this district, so the lawsuits will continue. While a $2,200 fine won't hurt too much, there are additional repercussions to Rule 11 sanctions. Malibu's attorney of record in this case, Mary Schulz, will have to report the sanctions to other courts in which she is admitted to practice.
Seeking leverage
"I've always had concerns about Exhibit C, even before they began filing it in court," said defense lawyer Erin Russell, who spoke with Ars this morning by telephone. "When they changed to suing single 'Does,' filing Exhibit C became part of the strategy. I don't think it's a coincidence—they needed some additional leverage."
Malibu was forced to abandon its mass-lawsuit strategy and start suing one defendant at a time after US District Judge Otis Wright insisted it must do so. "If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it," stated Wright in a 2012 order.
While it's true that Malibu doesn't oppose lawyered-up defendants who want to remain anonymous, Russell pointed out that Malibu does routinely amend lawsuits to include the names of accused downloaders who either don't hire lawyers or can't afford to. "If no lawyer steps up and no one says anything, they will surely amend the complaint and put someone's name on it," says Russell.
"Obviously we're really pleased," she added. "The Wisconsin ruling is dead on. Hopefully other courts where they are filing Exhibit C will take notice."
Schulz was not available to comment but said she would provide a written statement about the sanctions order. This story will be updated when it is provided.
reader comments
61