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.

Filed Under: bad defendants, blame, copyright, copyright troll, don bui, infringement, jammie thomas, joel tenenbaum
Companies: malibu media

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  1. icon
    sophisticatedjanedoe (profile), 23 Jul 2014 @ 2:58pm

    Re: Re: Re: Re: Re: Re: Intent Not Required

    It's a bit more complicated and totally different than it appears in Malibu's pleadings and motions.

    In the nutshell, the show is run by the Germans (Guardaley), and XArt's role was meant to be minimal, but the pornographers are being dragged into the mess more and more deeply as of late.

    About three years ago Guardaley's marketers found some adult plaintiffs and lawyers to form a shakedown outfit.

    Producers were promised easy money: "just let us to use your copyrights, and you'll get monthly checks" (believed to be about 10% of the proceeds). Lawyers would receive some cut too, and the Germans would get the lion share. According to the latest revelations in an Elf-Man cases (same foreign puppeteers: APMC is a Guardaley's shell, just like Excipio or IPP iInternational),

    Page 7 of that agreement includes redacted portions, but does otherwise indicate that any recoveries from APMC’s enforcement campaign would be allocated first to APMC’s costs, and then “the remaining monies shall be distributed as follows: (a) The appointed Attorney’s and litigation [REDACTED IN ORIGINAL], (b) The appointed forensic IT expert costs [REDACTED IN ORIGINAL], (c) The RIGHTS OWNER shall receive [REDACTED IN ORIGINAL].” In other words, it appears that APMC as the investigator and financier of the litigation has a direct and contingent stake in it.

    So, while on paper the trolls are white and fuzzy (Lipscomb even managed to make Judge Baylson declare that he is not a troll), the Lipscomb/Malibu outfit is not much better than Prenda, and is premised on the same things: Orwellian statutory damages in copyright, strict liability, stigma related to porn, inherent unfairness of the civil jurisprudence (it costs more to defend than to settle), and so on.

    Trolls adapt, and as we expose their sleaze (and as the case law is VERY slowly but surely patches the loopholes), things for XArt are not as easy as the pornographers expected them to be. XArt's principals can't just turn the lawsuit machine off, so they are now forced to allocate time and effort to play their puppet role (not to mention unwanted attention to their operations that are not exactly kosher from the law standpoint). I suspect that if they had a magical chance to start it all over, they would say "no thanks."

    Hope it answered your question to some extent. There is still a lot ow white spots in the picture, but we are getting there. I have big expectations from the July 30 hearing in Maryland.

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