Judge Might Allow Piracy Defendant to Comb Through 2257 Records

Jun 10, 2014 6:00 PM PST

CHICAGO — A federal judge in Chicago yesterday, making a preliminary ruling in a porn piracy case, said that a defendant may potentially be allowed to comb through X-Art.com's 2257 records in discovery in support of an "unclean hands" defense.

The unnamed defendant in Malibu Media vs. John Doe, subscriber assigned IP address, asked the court to dismiss the copyright infringement case on grounds that X-Art's parent company, Malibu Media, had unclean hands because it allegedly keeps "incomplete, deficient or fabricate records of the performers in its works."

Courts won't adjudicate a case if a judgment for a plaintiff would encourage criminal or unlawful activity, including violation of the federal record-keeping act, 18 U.S.C. § 2257, which requires anyone who produces sexually explicit content to create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

"Doe contends that [i]f any of the sexually explicit films featuring young-looking girls at issue here ... were feloniously produced in violation of the strict record-keeping requirements of 18 U.S.C. § 2257 ... then the court should not enforce copyright monopolies for such films,' " U.S. District Judge Matthew Kennelly said.

"The court is not prepared to say that federal copyright law would permit one who has produced child pornography — which cannot be legally produced or distributed anywhere in the U.S. — or who has failed to comply with federally mandated requirements aimed to deter production of child pornography to enforce a copyright relating to such material."

As a result, Kennelly declined to strike Doe's unclean hands defense in the preliminary ruling, but he will require Doe to establish that X-Art has violated the law with respect to one or more of the particular films that are the subject of its copyright infringement claims.

Kennelly also said in the ruling that the court is unprepared to rule out the possibility that Doe can establish an "implied license defense" based on "seeding" by X-Art onto BitTorrent of the particular films upon which its claim against Doe is based.

Doe contended as a defense that the alleged "seeded" content invited others to download it. He alleges that this amounted to an implied license, precluding a claim of infringement.

Attorney Morgan Pietz, who represents Doe, said that although some other affirmative defenses were stricken in the case, the bottom line is that the decision represented "a pretty significant win" for end users involved in John Doe porn litigation.

"[X-Art] has probably created a pretty troubling precedent for the adult industry with this new decision out of the Northern District of Illinois," Pietz told XBIZ. "The broader implication is that when an adult company goes into court to sue for copyright infringement, it had better be sure its Section 2257 house is in order." 

Pietz said that aside from explaining to the court why a Section 2257 defense was different from an obscenity defense, one of the other arguments he made was that X-Art invited scrutiny by filing more than 2,000 copyright infringement lawsuits in three years time.

Kennelly set a telephone status hearing between counsel for next week.

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