Judge Marrero: Pornography may not be entitled to copyright protection

By Raul

When one confronts a “blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent,” it appears as if Federal District Court judges are looking for more reasons to grant severance as a way to discourage these lawsuits. As Judge Otis D. Wright of the CACD observed:

The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement—making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it.

When Virginia-based copyright troll Mike Meier began filing lawsuits in the Southern District of New York (SDNY) back in December of 2011, I wondered if he paused to consider the implications of what he was doing or whether he was too busy counting the rewards he would reap. The implications are that the SDNY is arguably the most prestigious District Court in the nation (sorry, DDC, NDIL and CACD), because it hears and rules on some of the most high profile and complex cases in the federal judicial system. Accordingly, other District Courts will more often than not look to the SDNY when deciding a similar matter. For reasons known only by him, Marc Randazza had his theory of vicarious negligence kicked to the curb in the SDNY, while pursuing a copyright troll lawsuit in the SDNY. Randazza is a very smart guy, and he is aware of the implications. Based upon the determination in this case, it is more than reasonable to forecast that other lawsuits, which rely upon this theory of liability, either in whole or in part, will also be summarily dismissed in the future.

Regarding reasons to grant severance in a copyright troll lawsuit, Meier’s track record in the SDNY has given other District Courts several reasons to grant severances, which they are using on a weekly basis (it seems):

  1. On 1/3/20120 in the lawsuit entitled Digital Sin v. Does 1-176 (12-cv-00126) SDNY Judge Nathan referenced a 1-17 hearing during which Meier incredibly admitted to a 30% mismatch between infringer and subscriber in identifying IP addresses. Judges across the nation are using this as a plank of their platform to grant severance.
  2. Likewise and out of the same determination, Meier admitted to hearing “horror stories out there, telling what some law firms have done. For example, they have called and harassed the John Doe defendants.” This has since been translated into “abusive litigation tactics” in many subsequent judicial determinations across the nation granting severance.
  3. On 05/15/2012, in the lawsuit entitled Digital Sins v. Does 1-245 (11-cv-08170), a SDNY judge McMahon was the first judge to point to the fact that by joining oodles of potential plaintiffs in a lawsuit with a $350 filing fee, copyright trolls were ripping of the federal government. Once again, this reason to grant severance now resounds across the nation.
  4. Additionally, in the same lawsuit Judge McMahon observed that she had no faith in Meier’s geo-location technology, which she drilled home at a later date. Not surprisingly, this has also become another nationwide plank, granting severance in many determinations across the nation.

To the glee of us who are opposed to this predatory and shameless business model, Meier has continued to soldier on in the SDNY, but he has now blundered into an area, where both sides of this fight need to pause and assess the stakes. To put it bluntly, Meier has so aroused the ire of the SDNY, that First Amendment rights are potentially being placed on the sacrificial altar of the “quick buck.”

On 7/31/2012, in the lawsuit entitled Next Phase Distribution v. Does 1-27 (12-cv-03755), Judge Marrero who is no novice when it comes to overreaching handed down a Decision and Order, severing Does 2-27, and while touching on a lot of the customary reasons, added a new one:

Finally, the court recognizes that if the Motion Picture is considered obscene, it may not be eligible for copyright protection … Accordingly, the court recognizes that joining 27 defendants, a substantial number of whom may have no liability in this case, in a copyright infringement case when the copyright itself might be deemed invalid, could prove to be a costly and futile exercise for Nest Phase and the Court, and a damaging and unnecessary ordeal for the John Does.

This may just be a warning shot across the bow, but xbiz should take notice and put pressure on the small percentage that engage in this noxious extortion scheme before your freedom to create is undermined by the few. Based on the above, I predict future determinations severing Does, making use of this reasoning, which is problematic to say the least.

To end on a lighter note, I’m sending this out to the Frat Boy Trolls in response to the last week email (NSFW):

Featured comment

houstonlawy3r says:
August 13, 2012 at 10:10 pm

This is probably one of the best articles I have read yet. Quite frankly, after reading your article, I feel compelled to write something up as well because this is a momentous order (especially considering what Judge Howell just did in DC elevating the issue to a higher court).

The problem is that there is nothing to write because you’ve covered it all in a way that cannot be matched. Good for you. 🙂 I would advise all readers to read the order and take this one seriously. The dominoes are falling and I suspect (and hope) this issue is coming to a resolution.

Rob came up with an article soon after this comment. The article compliments Raul and complements Raul’s observations.

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38 responses to ‘Judge Marrero: Pornography may not be entitled to copyright protection

  1. Just like Randazza’s stupid Wi-Fi neglicence theory, if successful, would potentially ruin things for millions of innocent people if it made places like Starbucks and Best Western rethink providing free Wi-Fi because of legal liability, these idiots are only thinking about the shortest-term personal gain.

    These guys may end up ruining the party for a lot, lot, lot of people in xbiz by drawing a lot of scrutiny from people who are just looking for a way to put the Trolls down. In the end the rest of the industry will deserve what they get for sitting by and making excuses for this behavior. They sent the Copyright Trolls out to draw attention to the adult industry in the worst way and that’s exactly what is happening.

    I was about to give it to Marvin Cable, but I think Mike Meier may deserve the nomination for the East Coast’s equivalent of Brett Gibbs. He’s working on poising the courts there just like Prenda’s nearly brain dead lackey did out West.

  2. This is probably one of the best articles I have read yet. Quite frankly, after reading your article, I feel compelled to write something up as well because this is a momentous order (especially considering what Judge Howell just did in DC elevating the issue to a higher court).

    The problem is that there is nothing to write because you’ve covered it all in a way that cannot be matched. Good for you. 🙂 I would advise all readers to read the order and take this one seriously. The dominoes are falling and I suspect (and hope) this issue is coming to a resolution.

  3. Thanks for the excellent post.

    I’d like to emphasize a few points about the infamous Meier estimate (30% of named Does were not the infringers):

    (1) This estimate was only “revealed” because Mr. Meier was compelled to answer a judge’s question. How many more revelations will there be when trolls are required to fully answer probing questions ?

    (2) However sincere the answer, Mr. Meier would subconsciously tend to underestimate the percentage, supporting his case work.

    (3) As the context of Judge Nathan’s summary conveys, Mr. Meier begins with the FAULTY assumption that the I.P. addresses identified by supposed tracking technology are 100% accurate. This tracking method has not been publicly validated in any way. There is no technology without error, even when it’s far more critical and scrutinized.

    The Meier estimate would be LOW just because Meier assumes no technology error, in addition to other factors.

    Trolls have had several years and millions-of-dollars reasons to solidify their claim of solid technology. To date, there is just about nothing supporting the troll claim. The troll case complaint filings often use unedited, marginally reproduced print outs of wikipedia entries to make technology claims.

    There is no reason whatsoever for courts to accept CSI-type thoroughness in the forensic claim. The troll-anointed technologists rarely submit noteworthy credentials. Is it even sure that these supposed experts, whose declarations become exhibits, could earn admission to a quality university graduate school in computer science?

    • Usually, little to no information is submitted about supposed forensic techs. Credentials, software, the process or extent of information gathering, attempts at verification of information, role of the tech companies in initiating cases, relation of the tech business to the torrent stream, financial arrangements between techs, lawyers, and porn purveyor plaintiffs all remain undetermined.

  4. http://www.xbiz.com/news/152616

    “DENVER — The First Amendment Lawyers Association filed a friend-of-the-court brief yesterday in a case that raises the position that porn is not copyrightable.

    The case, which has its roots at federal court in Denver, involves a porn BitTorrent piracy defendant who has made counterclaims in relation to a suit filed against him by Malibu Media.

    The piracy defendant, who is now asking a federal judge for $1 million in damages as well as an order declaring Malibu Media’s copyrights invalid in relation to the suit filed against him, has called Malibu Media a “copyright troll” that seeks to “pervert the mechanisms” of justice.

    But FALA, in an amicus brief filed by its national secretary Marc Randazza[…]”

    I’ve stopped reading there 😉

  5. “The casualties of such legal poison will be far-reaching and indiscriminate.” – Marc Randazza

    Randazza thinks he’s describing Fantalis’ claim, but really his words more aptly describe his trolling efforts. What a two-faced lowlife.

  6. Hilarious. For all the whining that the plaintiffs do in these cases about how their “creative works” need more enforcement over their protection, it’s only making judges irritated to the point that they’re willing to strip whatever flimsy protection plaintiffs have. Nice going, trolls!

  7. it seems that under the miller test http://en.wikipedia.org/wiki/Miller_test the film is question for this case would more than likely be considered obsene by almost any community standard. obscene material is not covered by the first ammendment, and might not be copyrightable. the courts and prosecutors in general have avoided this topic and the trolls are forcing people to push it, in all reality one of these cases may end up b4 the supreme courts in the next 5 years (legal system is hella slow) and all because the trolls started this nonsense. how did they not forsee this happening?? the whole of the industry can and will be hurt by this no matter what. if ti is ruled it is copyrightable it will still have been such a hassle and so expensive that it will not have been worth it, and if it is finally ruled that it is not copyrightable then, well, the whole industry is hosed completely. sometimes the status quo is best and these r-tard lawyers rock the boat a bit too much.

  8. It’s important to distinguish between “obscenity” and “pornography” which have very different legal definitions. Obscenity has no first amendment protections. The creation, distribution, and even mere possession of obscenity is an illegal act. I don’t think copyright for obscenity would ever be an issue. If you file suit against someone for illegally copying your obscenity, chances are both of you would go to jail when the issue becomes known to the authorities. The same way it would be ridiculous to try to copyright and file suit against someone who stole your recipe for meth.

    Pornography, on the other hand, is not illegal. What worries me is why the judge is mentioning obscenity in the first place. Is there any reason to believe that the film in question may be considered obscene? Or is it an attempt to blur the distinction between obscenity and pornography? Is it intended to scare folks who don’t understand the legal distinction?

    But even if this one film is considered obscene – which can only be determined by a jury, btw – it shouldn’t have any sweeping impact on the industry as the vast majority of porn is not obscenity. What would be troubling for the industry is if copyright protections were taken away based on the mere accusation of obscenity without requiring the case to actually be proven.

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