Guardaley | X-Art

Yet another proof that X-Art doesn’t care about reducing piracy as much as about shaking down alleged file-sharers

Today the defendant in Malibu Media, LLC v. John Doe subscriber assigned IP address 98.207.153.167 (CAND 15-cv-04173 — from the first batch of Malibu’s 2015 California cases) has filed his Answer through attorney Curtis Edmondson. This answer contains a counterclaim of a kind that we never encountered before: the defendant asserts that he has been a paying X-Art’s customer.

COUNT 1 – DECLARATORY JUDGMENT OF NON-INFRINGEMENT

[…]

44. Defendant subscribed to the website of http://www.x-art.com and continues to have a valid subscription. In exchange for Plaintiff providing this monthly payment, the Plaintiff granted the Defendant the right to view and copy the films that are the subject of this lawsuit.

45. Plaintiff has alleged infringement of the films that are the subject of this lawsuit, but Defendant has been granted a license or a license by the Plaintiff for these works in question. As such, no infringement of the works can be maintained by the Plaintiff.

46. A case and controversy exists as to the scope and effect of the Defendant’s license to the works distributed through x-art.com. Defendant respectfully requests, pursuant to this license granted by x-art.com, that this Court enter a judgment of non-infringement in favor of Defendant.

I don’t want to speculate on the viability of the defendant’s claims: It’s an uncharted area — the terra incognita of unpredictable outcomes. However, one thought that immediately came to my head urged me to fire this short post.


If X-Art was serious about stopping infringement of its pornography, it would necessarily try to investigate the source(s) of possible leaks: patching such leaks would reduce unauthorized sharing myriad times more effectively than suing random people whose IP addresses were registered by the unlicensed German “investigators.” Being in X-Art’s shoes (again, if its owners were serious), what kind of investigation would you always perform? Right, you would search your customer access logs for the IP addresses supplied by the Germans. No brainer?

Apparently, this kind of a no-nonsense check was never performed. Why? Maybe because stopping infringement is contrary to Guardaley / Lipscomb / X-Art’s business model? Very likely. Reducing the number of X-Art’s skin flicks leaked to the wild would inevitably inhibit the settlement money flow, which is, if not the biggest, still a significant part of the X-Art’s revenue.

To be clear, I’m not even suggesting that the defendant in this case is an initial seeder. I just found it astonishing that X-Art’s “professional investigators” had been monitoring a particular IP address for two years and didn’t bother to match it to the user log. Moreover, it’s not implausible that X-Art’s owners, Lipscomb, and/or the Germans have no incentives to look for the initial leaker because he is well known to them. It looks like that the leaker is not a mere subscriber, but someone who has an insider access to the production kitchen, otherwise it’s impossible to explain how at least 50 movies hit torrents prior to their release, and over the span of three years no one cared to patch the hole.

Anyway, it’s an open secret that the Guardaley / Lipscomb / Malibu Media cartel is not interested in catching the real culprit. However, it’s always nice to have yet another proof.

Thanks to Raul for discovering and Recapping the document.
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Discussion

12 responses to ‘Yet another proof that X-Art doesn’t care about reducing piracy as much as about shaking down alleged file-sharers

  1. As crazy as it sounds this also might be a Hail Mary defense with the Doe purchasing a subscription after receiving notice. Stupid, yes, but not out of the question.

  2. Maybe the defendant should ask for his subscription money back, as well as retroactive sub money. If x-art is going after it’s own subscribers, this could be a bad example, one to deter paying customers in the future.

    • I don’t disagree. It’s a ballsy and potentially dangerous line of defense that requires to admit to copying. Especially given that copyright infringement is a strict liability (i.e. good intentions and wrong understanding of license don’t matter).

      I stated that I didn’t want to analyze the merits of this defense. My intention was to point to an aspect that a casual observer would otherwise miss.

    • Where is the evidence that anyone received a copy and with enough data to make it viewable? This isn’t going to trial, like all of X-Art lawsuits.

  3. Interesting…  I’m not an attorney, but this defense will likely cause Malibu Media/X-Art/Lipscomb some pain. I don’t know what the probability of success will be for the Defendant. Here is what is interesting – Both sides of the BT communication were authorized to have the content. That begs the question of when did the copyright infringement happen. Not between these two parties.  Then between the Defendant and some other person??? I have to look at the complaint, but i bet it doesn’t state that.

    Lipscomb and crew will state that even if the defendant was authorized to have the content, he was not authorized to share it with the multitudes of other BT user who did not have an X-Art subscription.  BUT again it falls to say what “Non-Authorized” party was involved. The best Troll Lipscomb can do is paint the picture that BT is used to infringe the works of his client and it is just “common sense” that other unknown (and unauthorized) personnel have downloaded the Malibu Media/X-Art files/movies from the Defendant. They will say that BT is designed to share between parties and Defendant must have shared the files/movies, otherwise he wouldn’t been able to use BT. BUT there is nothing to say that Defendant’s IP address shared Plaintiff’s movies with anyone but another Malibu Media authorized agent (German BT monitoring firm).  I’m sure Troll Lipscomb has a
    whole list of “other” (non-Malibu Media) files  that Defendant’s IP address had available for sharing via BT – it could have been those files.

    Still probably not the best defensible position, but it will likely cause some pain. I hope this person did not subscribe after the fact. I wouldn’t doubt if the Troll strings this out for a while and then brokerages a walk-away deal.  As I said, Interesting…

    DTD 🙂

      

    • One need not look further than the Collete Declaration v1.5 (iirc). I paraphrase …
      We had to spend money to make our servers faster because they could get it faster from the pirates!

      What is a paying customer to do when their access is choked…

  4. I should have thought that a bare assertion of a license would set lipscomb up for a malicious lawsuit complaint if he pushed the case any further.

    Ballsy, but maybe enough to scare him off.

  5. It is a brilliant defense because it is a rabbit hole.

    It may force them to show that they track the IP address of their registered users. And if they track users, they should in theory be able to find the IP address of the first infringer very easily. And if their anti-piracy group has been tracking their movies and collecting all of these IP addresses, then they should be able to show who the first downloader was in every infraction and show that they sanctioned this first offender. Additionally, they should be able to use this data to directly identify infringers negating the need to go out to the ISPs and request user data.

    To SJD’s point, if they have not does this, the question then is, “why not”? Cutting the snake off at the head would deter and prevent future infringement. They need to show they’ve made an effort to do this, otherwise the jig is up. Then I’d hit them with RICO.

    • interesting theory (second paragraph). if it does work, it will surely open up the works down the road. radical moves might prove to shake things up a bit. it sounds like some one has done their due work on the side in preparation, and are willing to put it out there to test. a good time to take a small step in the offensive.

      i think courts should just be more aware of these suits, so that the scheme dissolves quicker.

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