US Court Grants Discovery in Porn Companies File-sharing Lawsuit

Earlier this month, a court in Maryland has granted Malibu Media’s motion “to initiate discovery to identify the John Doe Subscriber” who allegedly downloaded pornographic content on BitTorrent. What is interesting is the fact that this motion comes with strict conditions. All this really raises an age-old question, are these lawsuits against file-sharers really all that effective?

The record industry is no stranger to file-sharing litigation. RIAA (Recording Industry Association of America) have had a very long history of litigation that goes as far back as the days of Napster. So, in comparison to the roughly decade old litigation campaign against file-sharers, the porn industry’s litigation really is a relatively new phenomenon as the litigation can merely go back as far as 2010.

Even when the gaming industry and the movie industry joined the mass litigation campaign, file-sharing has not only stayed strong, but has even gained in strength over the years. The only real thing that has put a dent in the file-sharing of copyrighted material has ultimately been an increase in more attractive alternatives such as Spotify and Netflix.

Two arguments that major record companies used in support of such litigation was that the industry was dying because of file-sharing and that such litigation would serve as a deterrent. Yet, here we are, about to ring in 2015 and the music industry is alive and well and file-sharing has never gone away. These two facts alone would do little to add any credibility to these two narratives as far as the general population is concerned.

What does make litigation against file-sharers different when porn companies start suing is the fact that not everyone wants the public to know that they look at pornographic content. So, there is reason why this has gathered a certain amount of media attention. The electronic Frontier Foundation (EFF) has argued that unmasking alleged file-sharers could embarrass defendants into settlement regardless of merit. Back in 2010-2011, another problem with large file-sharing cases where hundreds or even thousands are sued in the same case is whether or not a certain court has jurisdiction for every anonymous Doe defendant.

Fast forward to earlier this month, and it’s not hard to get the impression that a lot has changed since then. According to court documents obtained by Freezenet, Malibu Media is still litigating file-sharers, but on a much smaller scale. According to one case in Maryland, there was a motion for discovery against one single Doe defendant (court case reference: Civil No. JKB-14-3949. MALIBU MEDIA, LLC v. Doe). In the documents, district judge James K. Bredari writes:

The Court is aware that in similar cases filed by plaintiffs in other jurisdictions against Doe Defendants, concerns have been raised as to the sufficiency of the allegations of complaints because association of an IP address· with a customer may be insufficient to state a claim. [cite: See, e.g., Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233, 237-39 (E.D.N.Y. 2012)] There also have been reports of plaintiffs undertaking abusive settlement negotiations with Doe Defendants due to the pornographic content in the copyrighted works, the potential for embarrassment, and the possibility of defendants paying settlements even though they did not download the plaintiffs copyrighted material. [cite: Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012)]

Having considered the concerns raised by other courts that have addressed similar cases, and Malibu’s motion requesting permission to initiate discovery to identify the John Doe Subscriber, the Court GRANTS the motion, subject to the following conditions and limitations

Those limitations include that the defendant’s true identity cannot be disclosed to any third party and that Doe is to be informed of the complaint. Further, “Malibu is prohibited from initiating, directly or indirectly, any settlement communications with any unrepresented Doe Defendant whose identity has been revealed pursuant to the Subpoena or deposition described in paragraph 4 above. Any settlement communications with an unrepresented Doe Defendant shall be initiated only as approved by the Court.”

What this appears to do is take the wind out of any attempt to make this a high profile naming and shaming case. It is also difficult for this to really be a major story because a porn company suing a single Doe defendant is hardly a headline grabber like A new record: 9,729 P2P porn pushers sued at once.

So, really, one has to wonder when looking at a lawsuit like this, what exactly is the point in this? A bunch of money is spent and one unfortunate souls life becomes a lot miserable. The case doesn’t even register as any major news story, so this would be just another forgotten case in the war on file-sharer’s. In the end, it’s really questionable if Malibu Media would end up getting much out of the case.

Perhaps one could argue that this is just another example of how futile litigation is against individuals really are. It’s extremely hard to see how the plaintiffs in this case would really end up ahead in the grand scheme of things as a result of this lawsuit.

Drew Wilson on Twitter: @icecube85 and Google+.



Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.