Should defendants be forced to discuss their online porn proclivities as part of copyright cases? One rightsholder says yes—and it wants details, such as what sites defendants have visited and what style of erotic material they prefer.
Since the decline of Prenda Law, the most litigious copyright holder in the US is Malibu Media, a porn company that runs the website X-Art. Malibu goes to great lengths to emphasize that it's a real adult film company—not a "copyright troll" like Prenda, which seemingly thrived on lawsuits alone. Still, Malibu has filed thousands of cases in recent years, all over unauthorized downloads of its movies via BitTorrent.
Some of its critics accuse Malibu of trying to embarrass defendants to get settlements. Last year, a judge sanctioned Malibu for including exhibits that listed "expanded surveillance"—that is, copyrighted material supposedly downloaded by the defendant but not owned by Malibu. Often, the "expanded surveillance" reports included pornography with more lascivious titles than Malibu's films, which tend to have tame titles.
While Malibu seems to have given up on the "expanded surveillance" strategy, a weekend post on the Fight Copyright Trolls blog suggests that the company still wants to dredge up information that could embarrass defendants. In a Michigan case called Malibu Media v. Jason Pontello, the company asked the defendant to supply information about every adult website visited in the last two years, by any member of the household.
The exact questions asked were:
Plaintiff’s Interrogatory No. 22: Have you or anyone who has had access to a wireless router(s) or modem(s) in your home visited an adult website within the last two years? If so, identify the websites and state how often those websites were visited.
...
Plaintiff’s Interrogatory No. 23: Have you ever watched x-rated, adult or pornographic movies or live feeds (collectively, “adult content”)? If so, when was the last time you watched adult content, how often do you watch adult content, which studios do you prefer, and what type of movies do you prefer?
...
Plaintiff’s Interrogatory No. 24: Have you ever subscribed to an internet company distributing adult content? If so, identify the company and state the period of time that you were a subscriber.
Pontello, represented by defense lawyer John Hermann, refused to answer the questions, calling them "retaliation for his failure to submit to Plaintiff's extortion tactics." The questions were "deliberately calculated to elicit information by which Plaintiff can then use to embarrass him as a viewer of pornography in order to facilitate a coercive and/or extortionate settlement or demand," Hermann wrote.
But on June 30, Malibu doubled down on its demand to know all about the porn habits of anyone in the household. It filed a motion to compel, telling the judge that Pontello should be ordered to disclose his porn preferences.
“Borderline harassment”
The judge won't ultimately rule on Malibu's demand. In an interview with Ars, Hermann said that the case settled a few days ago, and on terms he can't disclose.
The settlement in the Pontello case was reached shortly after a hearing on Hermann's motion to get more information about the relationship between Malibu and its digital forensics firm, IPP. Hermann noted that in some other cases, defendants have suggested Malibu has been paying IPP on a contingent-fee basis. While it's allowable to pay lawyers on a contingent-fee basis, to pay experts in that manner violates ethical rules.
Hermann, who has defended more than 50 cases against Malibu, said he started seeing broad demands for disclosure about porn-watching about a year and a half ago.
"That particular question is something that I've routinely objected to," Hermann said. "I've yet to have a court order me to turn over that information. Any request along those lines is borderline harassment, with the intent to embarrass."
In the Pontello case, Malibu accused the Michigan man of illegally downloading 33 of its copyrighted works. Pontello denied downloading anything and said that his Internet connection was shared with several other members of his household.
While Hermann wouldn't comment specifically on the Pontello case, he said the scenario in which Malibu sues over a shared connection isn't unusual. Such lawsuits can put defendants in a tough situation; in order to defend themselves, they're asked to essentially "snitch" on a friend or family member.
"Malibu makes this argument that it's your Internet connection and you're responsible," said Hermann. "They say, if it's not you, then point the finger—so we can go after the other person, whether it's a roommate, housemate, or family member who may be the target. I've never seen them let a defendant off."
Malibu Media's lawyer in this case, Paul Nicoletti, didn't respond to requests for comment for this story. Malibu Media owners Colette and Brigham Field have not responded to earlier interview requests.
Malibu's model may be changing. Early on, said Hermann, the firm was pursuing settlements between $3,000 and $5,000 in each case. It's now focused on "multiple downloaders" and is seeking up to $20,000 as a settlement amount.
"When these things started, they picked up some low-hanging fruit," said Hermann. "People really had an incentive to settle rather than litigate. Now that Malibu is being required to prove their case against a single defendant—even if they do recover a settlement, the cost of litigating is simply a wash."
reader comments
125