Judge Issues Strongly Worded Order Denying X-art.com Subpoena Power

Jul 7, 2015 10:44 AM PST

NEW YORK — In a strongly worded order yesterday, a federal judge denied a motion by the operators of X-art.com to subpoena a John Doe defendant accused of sharing its movies through BitTorrent.

In his order and opinion, U.S. District Judge Alvin Hellerstein denied expedited discovery in the case, which would have allowed X-art to send a subpoena to Time Warner Cable ISP to learn the actual identity of Doe, saying the porn company failed to show “good cause” in its request.

Hellerstein noted X-art’s “history of abuse of court process” and said that its operators, husband-wife team Brigham and Collette Field, are a “prolific litigant,” noting that the porn company whose corporate name is Malibu Media was responsible for 38 percent of all copyright lawsuits in the U.S. between January and May 2014.   

Its corporate strategy, Hellerstein said, relies on aggressively suing for infringement and obtaining accelerated discovery of the IP address holder's identity from the ISP.

“It then seeks quick, out-of-court settlements which, because they are hidden, raise serious questions about misuse of court procedure,” Hellerstein said.

Hellerstein said that X-art “effectuates its strategy by employing tactics clearly calculated to embarrass defendants” and that it has a history of being sanctioned for sending out demand letters that included racy and lewd titles “to coerce larger, faster settlements by further shaming defendants.”

A lower court sanctioned X-art when it learned that it did not even own the copyrights for the titles listed in the letters, he noted.

In the case involving Doe, the defendant was accused of downloading and sharing over the Internet a large file containing 127 movies owned by X-art, including such titles as “Cum In Get Wet” and “Tie Her Up For Me.”

Hellerstein, in his order denying X-art subpoena power, said there is no doubt that online piracy of digital media is a major problem today, and ordinarily, the federal court system provides litigants “with some of the finest tools available to assist in resolving disputes."

“Those tools can empower copyright owners to enforce their rights, but they are also capable of being used as instruments of abuse,” he said. “Where abuse is likely, as it is here, courts should not make those tools available without careful scrutiny.”

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