X-Art Sought Protective Order in Porn Piracy Case

Jun 12, 2014 11:15 AM PST

CHICAGO — The operators of X-Art.com, who say they have been the target of a "fanatical Internet hate group," recently filed a motion seeking a protective order seeking to seal a deposition and an order preventing opposing counsel from discussing a porn piracy case against a John Doe.

The motion was unsealed by a federal court yesterday after it was ultimately granted.

X-Art maintained in the motion that the operator of blog site FightCopyrightTrolls.com, described as “Sophisticated Jane Doe,” and its members, which includes the defendant's attorney, have physically threatened, defamed and cyber-stalked everyone associated with the company.

The online adult company, which has filed more than 2,000 porn piracy cases through its parent  company Malibu Media, told the court that if information in the deposition would be revealed, perhaps via the FightCopyrightTrolls or its members, there would be a high probability of spoliation of evidence.  

"Their psychopathy is criminal and scary," said the motion in Malibu Media LLC (X-Art) vs. John Doe subscriber assigned IP address "The Internet hate group targets everyone that it can identify.

“In this case, it is apparent that plaintiffs intend to use defendants' deposition testimony to further their crusade of criticizing and embarrassing defendants."

X-Art's counsel said in the case that the studio's owners, Brigham and Colette Field, feared that financial records could be revealed and that competitors would learn their revenue and profits, among other aspects of their business.

"Its tax return describes their personal wealth. Unless protected, the Fields will be harassed by the hate group who already calls them 'greedy scumbags,'” the motion said.

The operators also were concerned that its agreement with IPP, it antipiracy tracking company, might be leaked.

X-Art maintained in the motion that "no witness has ever been paid for testimony, and the evidence reported to [X-Art] by IPP is independently verifiable," and that it shouldn't have to supply third-party infringement data to the defendant that would be financially exorbitant to compile.

"Opposing counsel’s wild goose chase to find a 'smoking gun' [that fees were commission-based] will come to no avail," X-Art's motion said. "There can be no 'smoking gun.' This case is not like the widely publicized Prenda case where John Steele made up a client and then bought and sued on copyrights. Plaintiff is a real multimillion dollar business."

The opposing counsel representing the Doe is Peoria, Ill., attorney Jonathan LA Phillips, who told XBIZ today that the motion "was a result of an order from the Northern District of Illinois' which refused to allow Malibu Media to litigate this particular case in the shadows."

"I am happy to practice in U.S. district courts where the 7th U.S. Circuit Court of Appeals has made it clear that litigation is to be open, accessible, and able to be reviewed and commented by the news media, the blogosphere, and the public at large," he said. "Such review, along with critique, and criticism, is essential to our system of justice."

X-Art's filing also added that the company had experienced "inflammatory allegations of criminal wrong-doing" that have the "intended potential to incite violence against them," if material from the deposition isn't contained through a protective order.

X-Art said that FightCopyrightTroll's operator, Sophisticated Jane Doe, "falsely asserting plaintiff violated the Ventura County coastal zoning ordinance by filming without a permit and falsely accusing plaintiff of violating Ventura County ordinance titled Safer Sex in the Adult Film Industry." 

X-Art additionally cited that attorney Morgan Pietz, who is not attached to the suit but who does represents Does in other porn piracy cases, "has falsely alleged in pleadings that [X-Art] violates 18 U.S.C. § 2257," the federal record-keeping law for adult producers.

"Then he sent a press release to [XBIZ]," the motion said. "Violating Section 2257 carries substantial criminal penalties. In tandem with Mr. Pietz’s efforts, [Sophisticated Jane Doe] has taken to repeatedly accusing plaintiff of producing child pornography. Child pornography carries a 15- to 30-year prison sentence."

Pietz told XBIZ that X-Art that although he couldn't speak for this particular Doe suit or specifics of the case because he is not personally involved with it, he said that the X-Art's latest filing shows how this particular case is going  

"Lawyers have a saying: When the law is on your side, pound the law," Pietz said. "When you don't have the law, but the facts are on your side, pound the facts.  When you don't have either the law or the facts on your side, pound the table."

Pietz noted that X-Art was incorrect as for the 2257 issue that XBIZ reported on.

"I did not send out a press release to XBIZ touting the Section 2257 issue," Pietz said. "XBIZ found the story on its own and came to me asking for comment. And I can understand why: Malibu has now created another lousy precedent for the whole adult industry. 

"It is also a bit ironic that Malibu, a business built on the First Amendment, which protects what would otherwise be prostitution as 'speech,' is apparently so sensitive to what it calls 'hate' speech," Pietz said. "I don't mean to condone any kind of threats, but if a porn company is going to sue thousands of regular individuals for millions of dollars in damages, do they really think they are going to escape media interest and harsh criticism online?"

Geneva, Ill.-based attorney Mary Schulz, who represents X-Art, did not respond for XBIZ comment on the motion that was unsealed yesterday.

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