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The Abandonment Defense in Torrent Filesharing copyright suits

Posted by Steve Vondran | Feb 02, 2019 | 0 Comments

“P2P FIle-Sharing Defense – Abandonment of Copyright Defense

 

Introduction

In a recent case a Defendant accused of downloading 20 movies claimed that Malibu Media (a prolific filer of federal copyright lawsuits along with Strike 3 Holdings, LLC), had abandoned its copyrights to its adult pornography movies by allegedly uploading them to tube websites.  Plaintiff challenged this with a motion for summary judgment and lost.  The case appears to have been subsequently dismissed.

Malibu Media v. Doe 4:15-cv-2281

Abandonment Defense Raised

Here is the substance of the argument raised:

“Abandonment of Copyright Protections – Plaintiff willingly entered into business partnerships with third-party websites (hereinafter “Free-sites) which offer free performance, copying, and distribution of Plaintiff's copyrighted materials. Plaintiff advertises itself as a producer of free content for numerous Free-sites. Said Free-sites post hundreds of Plaintiff's videos for free download and sharing. Defense has identified more than 133,000,000 “hits” on Plaintiff's videos with potentially as many downloads and re-distributions through its business partners' websites. This is an affirmative action of abandonment and/or forfeiture of copyright protections.”

Court refuses to dismiss abandonment claim on Plaintiff's motion for summary judgment

ORDER AND NOW, this 8th day of November, 2018, upon consideration of the motion (Doc. 122) for summary judgment filed by plaintiff Malibu Media, LLC (“Malibu”), and the motion (Doc. 123) for summary judgment filed by defendant John Doe, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. Malibu's motion (Doc. 122) for summary judgment is GRANTED to the extent that there are no genuine disputes of material fact as to whether John Doe engaged in direct copyright infringement of the following 19 copyrights-in-suit: “Tantric Massage,” “One Night Stand,” “The Rich Girl Part #2,” “Just the Three of Us,” “One Show For Each,” “Four Ways,” “Sneaking In,” “A Little Rain Must Fall,” “Sparks,” “Tie Her Up For Me,” “Angelica means Angel,” “Sweet Awakening,” “Rock Me Baby,” “Fashion Models,” “Chloe Loves Carl Part 2,” “Give Me More Part 2,” “Above The Air,” “Coming Late,” and “Sexy En Noir.”

2. Malibu's motion (Doc. 122) for summary judgment is further GRANTED to the extent that there are no genuine disputes of material fact and Malibu is entitled to summary judgment on the following of John Doe's affirmative defenses: actual or implied license, unclean hands, estoppel, copyright misuse, de minimis infringement, innocent infringement, failure to mitigate, accord and satisfaction, and failure to state a claim for injunctive relief.

3.  John Doe's motion (Doc. 123) for summary judgment is DENIED.

4. Entry of judgment in accordance with the above paragraphs is DEFERRED pending trial on the issues outlined in paragraph 5.

5. This matter shall proceed to trial on the issues of

(1) whether John Doe engaged in unauthorized copying of the disputed video “In for the Night”

and

(2) whether Malibu, itself or through the acts of its agents, abandoned its rights under the Copyright Act to the 20 copyrights-insuit. 6. The court will establish a pretrial and trial schedule by separate order to issue forthwith.

/S/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania

Here is a copy of the Court's Order. Malibu Media Order re Abandonment of Copyright

Unclean Hands Defense Raised

Another defense the John Doe Defendant raised was Unclean Hands.

“Plaintiff, through its business partners, advertises its videos as free to download and share. Plaintiff, through its business partners, has posted over 250 of its videos and potentially re-distributed over 133,000,000 times. Many of the videos Plaintiff distributes for free via its business partners' websites are the very same videos available via BitTorrent. Plaintiff advertises its videos as “free” on four out of the five most visited free adult websites in the world, exposing hundreds of millions of visitors to the belief that Plaintiff's videos are free to download and share. If any of the videos distributed by the Plaintiff's business partners were not authorized, it is knowable only to Plaintiff.”

Copyright Misuse Defense Raised

John Doe Defendant also raised the “Copyright Misuse” Defense.

“Copyright Misuse – Plaintiff, through its business partners, advertises its videos as free to download and share. Plaintiff, through its business partners, have poste over 250 of its videos and downloaded up to 133,00,00 times. Many of the videos Plaintiff distributes for free via its business partners' websites are the very same videos available via BitTorrent. Plaintiff advertises its videos as “free” on four out of the five most visited free adult websites in the world, exposing hundreds of millions of visitors to the belief that Plaintiffs videos are free to download and share. None of the dozens of websites which host Plaintiff's content list themselves as exclusive distributors. Plaintiff encourages the downloading and sharing of its content via the internet. Whereas Plaintiff has already either abandoned it copyright protections, or given license to download and distribute its content, singling out only BitTorrent users in order to create a for-profit litigation scheme is against public policy and anti-competitive especially when Plaintiff has suffered no actual or apparent damages. The purpose of the copyright law is not to entrap innocent individuals via false advertising. The purpose of copyright protections is to spur creativity for the betterment of society. Plaintiffs us of using the copyright protections as a revenue generation scheme is against public policy”

Implied License Rejected

The court rejected the argument regarding to having an implied license:

“Implied or Actual License – Plaintiff has knowingly and freely entered into business relationships and allowed its name to be associated with free distribution websites. Plaintiff had knowledge prior to, and at all times thereafter, that the free distribution websites were distributing Plaintiff's copyrighted materials to anyone in the world with access to a computer. Defense has identified potentially 133,000,000 free distributions of Plaintiff's videos through its business partners' websites. By engaging in business relationships with the free distribution websites and by endorsing the relationship by placing its logo on the Free-sites' websites, Plaintiff has given implied or actual license to copy, publish, and distribute its copyrighted materials by anyone in the world with access to a computer.

De Minimis Copyright Infringement Argued

“De Minimis – Plaintiff, through its business partners, has authorized the distribution, download, reproduction, performance, and sharing of its copyrighted materials for free to hundreds of millions of individuals around the world. Plaintiff receives no monetary compensation from the free distribution websites other than free publicity for those who may wish to join Plaintiff's subscription website. Plaintiff has alleged no commercial infringement of its materials. The purported infringements by Defendant caused no apparent or actual harm to Plaintiff. Plaintiff can show no harm in what has already been authorized to be published and distributed hundreds of millions of times for free.”

Contact a Malibu Media and Strike 3 Holdings, LLC pron defense lawyer

We have help many people across the United States defend themselves in federal court lawsuits dealing with movie production companies like Strike 3 and Malibu Media.  Contact us at (877) 276-5084 if you received a subpoena notice from your ISP.  We can discuss Motion to Quash, protective orders and how many movies are at issue.  We can answer your questions.  As we like to say, You CLICK, we DEFEND®.

 

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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