Somewhere soon in Hopewell Junction an avid movie buff – and alleged digital pirate – will agonize over a legal dilemma, when the mystery of his, or her, identity is unveiled.
Malibu Media, a purveyor of erotic movies, is suing John Doe, a Dutchess County flick fan now known only by a 10-digit internet protocol address. Malibu is accusing 184.108.40.206 of copyright infringement for allegedly downloading the company’s movies illegally.The complaint filed in federal court in White Plains is not Malibu’s first such lawsuit. In fact, the Westlake Village, California company may be the most prolific filer of John Doe lawsuits in the country.
Its tactics have been described by some federal judges as copyright trolling and by others as a legitimate method of counteracting pervasive digital piracy.
Malibu’s strategy is “clearly calculated to embarrass defendants,” Manhattan federal judge Alvin K. Hellerstein wrote in a 2015 opinion denying the company’s request to subpoena Time Warner Cable records.
But Manhattan federal judge John F. Keenan ruled in another 2015 case that, despite concerns about the potential for coercive and abusive litigation, “plaintiff has no other means of learning defendant’s name and address.”
Malibu was founded in 2009 by Colette Pelissier and Brighan Field. They produce and copyright short, erotic films, and they charge a subscription fee for unlimited access, ranging from $25 a month to $100 a year.
But lots of people get the movies for free by using BitTorrent, a peer-to-peer file sharing system. Malibu can trace the thefts to IP addresses but not to specific people.
Since 2012, the company has filed about 6,200 John Doe cases in federal courts across the country. More than 400 cases have been filed in the southern district of New York, including White Plains.
Malibu claims that an Optimum Online high-speed internet service subscriber in Hopewell Junction illegally obtained 16 movies from November 2016 through September 2017.
Among the titles are “Luscious Lena,” “Perfect Pussycat,” “Sultry Hot Summer,” “Wet Perfection” and “XXX Threeway Games.”
Malibu uses court-ordered discovery to identify the owner of an internet account, then tries to quickly negotiate a settlement. It rarely takes a case all the way to trial.
Several judges have found the tactics troubling. Courts have noted, for instance, that the fact that someone subscribes to an internet service does not mean that he or she is the one who downloaded the film. A child, a spouse, a guest or a neighbor could be the actual culprit.
A judge found in a 2012 case that about 30 percent of the John Does identified by their internet service providers were not the individuals who actually downloaded the films.
But once the subscriber is publicly identified, the name is forever linked to the use of pornographic films, Keenan wrote.
“He faces a dilemma: settle a spurious claim to avoid guilt by association or litigate and suffer embarrassment.”
Hellerstein likened Malibu’s strategy to copyright trolling, where the business of litigation is more important than the business of selling a product or service.
Settlements, he noted, are often priced just low enough to make them less expensive than hiring an attorney to defend the claim.
Given the risk of misidentification, Hellerstein wrote, “these sorts of allegations – especially by this plaintiff – are likely to coerce even innocent defendants into settling.”
Keenan allowed Malibu to subpoena Time Warner to unmask the John Doe, but he included a protective order.
He ordered the company not to disclose, or threaten to disclose, the defendant’s name, address, telephone number, email, social media username or any identifying information other than the internet service provider number. The defendant was permitted to litigate the case anonymously.
It is too early to say how John Doe 220.127.116.11 will resolve his or her dilemma. Meanwhile, in the two weeks since the case was filed in White Plains, Malibu Media has filed 34 more John Doe patent infringement lawsuits, all in New York and New Jersey.