Porn Piracy Defendant Uses 2257 as Weapon

Nov 21, 2013 2:15 PM PST

CHICAGO — A John Doe defendant fingered for allegedly poaching porn off a file-sharing site made charges last week that adult producer Malibu Media's 18 U.S.C. § 2257 record-keeping  documents may be "incomplete, deficient or even fabricated."

Malibu Media brought a suit against Doe in July after it said it traced 19 copyrighted movies downloaded from a BitTorrent site to his IP address. Titles such as "Spilled Milk," Mutual Orgasm" and "Circle of Bliss" were poached by Doe, the suit said.

But Doe, responsding to the accusations, has filed a counterclaim seeking declaratory relief because of copyright misuse on the part of Malibu Media. He also is asking for the case be dismissed because Malibu Media hasn't attached his true name to the suit.

Malibu Media produces and distributes content mostly through X-Art.com and has become one of the most prolific companies when it comes to consumer piracy litigation. Records obtained by XBIZ show the studio has waged 1,421 copyright infringement lawsuits in the past two years.  

Doe said that Malibu's claims fail partly because many of the models performing in the movies, all available on X-Art.com, appear to be young females hailing from former-Soviet block countries, such as the Czech Republic, Slovakia, Russia, Hungary and Romania, where record-keeping requirements for porn performers are much less stringent.

If the record-keeping requirements fail for a film, Doe said, so does its copyright protection.

"Doe is informed and believes ... that the 2257 records for certain of the  pornographic movies at issue in the complaint in this action may be incomplete, deficient or even fabricated," Doe said.

"[T]he problem of unscrupulous agents, managers, talent scouts and sometimes the performers themselves providing incomplete, insufficient or even fake identity documents is particularly acute with female performers from former-Soviet-block countries, among other problem areas."

Doe also charged that Malibu Media has made a business model out of porn copyright infringement litigation by seeding some of its content onto BitTorrent services.

"Malibu, under the overall direction of plaintiff’s law firm Lipscomb, Eisenberg & Baker of Miami and with day-to-day assistance  from regional local counsel, has been systematically suing John Doe defendants for infringement and then seeking settlements on a scale seldom seen in the history of federal litigation," he said.

Attorney Morgan Pietz, who represents the Doe, wouldn't comment on the Malibu Media  case specifically. But the Manhattan Beach, Calif., attorney said that the 2257 weapon for porn file-sharing defendants is worth looking at.

"I know the adult industry views Section 2257 compliance as frustrating and difficult, even unconstitutional. But that law serves to safeguard important public policy interests, namely preventing illegal child pornography," Pietz told XBIZ.

"Should the Copyright Act extend protection to a movie that was produced in violation of a law designed to protect that strong public policy? It is an interesting legal issue and one I look forward to exploring," he said.

"The recent phenomenon of adult content  owners using their copyrights as swords, rather than shields, in industrial-scale, end-user litigation, would seem to invite this kind of scrutiny."

Mary Schulz, a Geneva, Ill.-based attorney representing Malibu Media and its X-Art division, did not respond for comment by post time.

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