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.