When Sued By A Copyright Troll, Using The 'Blame The Torrent Site And Also I Don't Speak English' Defense Is Really Dumb
from the not-how-it's-done dept
It’s one thing to take a stand against questionable copyright trolling, but it’s another thing to be a really bad defendant. We had this with both of the RIAA’s lawsuits against Jammie Thomas and Joel Tenenbaum. In both cases, they were bad defendants who clearly broke the law and then tried to play cute in defending themselves. In both cases we pointed out that they should have settled, and that fighting on when they had no case was a really bad idea. Yes, there are all sorts of ridiculous things about many of these cases, and there are all sorts of legal questions raised about them. But if you’re caught dead to rights infringing on the works of others, pretending that some magical fantasy world is going to open up in the back of the closet is just silly. Even worse: bad defendants create really bad case law that allows copyright trolls to use those cases to shake down lots of other people, many of which probably have much stronger cases.
Unfortunately, it looks like we have another example of this. Uber copyright troll/porn producer Malibu Media has won an easy lawsuit against a defendant who tried to blame everything on the fact that he used Kickass Torrents to download Malibu Media movies. 57 of them. That kind of blaming the middleman is never going to work. In fact, others have tried it in the past, and it doesn’t work. As the judge in the case noted:
Defendant has some quarrels with the details of how BitTorrent works, but nothing that the Court sees as a fundamental or material issue of fact. Even as Defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of Plaintiff?s works?copies that did not exist until Defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users. True enough, the process is not identical to the peer-to-peer file sharing program in Grokster. It is, however, functionally indistinguishable from the perspective of both the copyright holder and the ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy.
Of course, one could make a reasonable argument that the fragmented transfers raise issues concerning the distribution right of copyright, but not the reproduction right. On the reproduction right, the defendant, Don Bui, is clearly cooked. And he and his lawyer should have recognized that much earlier. Instead, they get this ruling that, because of the bad defendant, makes a bunch of broad statements that go beyond just Bui’s immediate case and may create problems elsewhere. For example, the judge, Robert Jonker, cites the Aereo ruling to support this — even though that’s a dangerous way to read the Aereo ruling. Jonker seems to accept the “don’t look in the black box, just look at the end results” aspect of Aereo. But, under such a system, lots of things that aren’t infringement might now be judged infringing. It’s basically a shortcut to avoid careful analysis, and that’s what happens when you have bad defendants who clearly infringed.
Bui’s lawyer also tried the “poor immigrant who doesn’t understand English very well” argument and saw that shot down as well. Deservedly so. There are plenty of reasons to challenge questionable lawsuits. And plenty of reasons for some folks to legally attack the underpinnings of copyright trolling — including things like honeypots and abusing the judicial system to shake down people — but taking a bad defendant all the way through the legal process is a bad idea. And the end result is going to be that Malibu Media not only claims vindication for its activities, but waves them around to every reporter, judge and (most importantly) future targets of its shakedown game.