Judge Marrero: Pornography may not be entitled to copyright protection

When one confronts a “blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent,” it appears as if Federal District Court judges are looking for more reasons to grant severance as a way to discourage these lawsuits. As Judge Otis D. Wright of the CACD observed:

The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe Defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement—making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it.

When Virginia-based copyright troll Mike Meier began filing lawsuits in the Southern District of New York (SDNY) back in December of 2011, I wondered if he paused to consider the implications of what he was doing or whether he was too busy counting the rewards he would reap. The implications are that the SDNY is arguably the most prestigious District Court in the nation (sorry, DDC, NDIL and CACD), because it hears and rules on some of the most high profile and complex cases in the federal judicial system. Accordingly, other District Courts will more often than not look to the SDNY when deciding a similar matter. For reasons known only by him, Marc Randazza had his theory of vicarious negligence kicked to the curb in the SDNY, while pursuing a copyright troll lawsuit in the SDNY. Randazza is a very smart guy, and he is aware of the implications. Based upon the determination in this case, it is more than reasonable to forecast that other lawsuits, which rely upon this theory of liability, either in whole or in part, will also be summarily dismissed in the future.

Regarding reasons to grant severance in a copyright troll lawsuit, Meier’s track record in the SDNY has given other District Courts several reasons to grant severances, which they are using on a weekly basis (it seems):

1. On 1/3/20120 in the lawsuit entitled Digital Sin v. Does 1-176 (12-cv-00126) SDNY Judge Nathan referenced a 1-17 hearing during which Meier incredibly admitted to a 30% mismatch between infringer and subscriber in identifying IP addresses. Judges across the nation are using this as a plank of their platform to grant severance.
2. Likewise and out of the same determination, Meier admitted to hearing “horror stories out there, telling what some law firms have done. For example, they have called and harassed the John Doe defendants.” This has since been translated into “abusive litigation tactics” in many subsequent judicial determinations across the nation granting severance.
3. On 05/15/2012, in the lawsuit entitled Digital Sins v. Does 1-245 (11-cv-08170), a SDNY judge McMahon was the first judge to point to the fact that by joining oodles of potential plaintiffs in a lawsuit with a $350 filing fee, copyright trolls were ripping of the federal government. Once again, this reason to grant severance now resounds across the nation.
4. Additionally, in the same lawsuit Judge McMahon observed that she had no faith in Meier’s geo-location technology, which she drilled home at a later date. Not surprisingly, this has also become another nationwide plank, granting severance in many determinations across the nation.

To the glee of us who are opposed to this predatory and shameless business model, Meier has continued to soldier on in the SDNY, but he has now blundered into an area, where both sides of this fight need to pause and assess the stakes. To put it bluntly, Meier has so aroused the ire of the SDNY, that First Amendment rights are potentially being placed on the sacrificial altar of the “quick buck.”

Federal Judge Victor Marrero

On 7/31/2012, in the lawsuit entitled Next Phase Distribution v. Does 1-27 (12-cv-03755), Judge Marrero who is no novice when it comes to overreaching handed down a Decision and Order, severing Does 2-27, and while touching on a lot of the customary reasons, added a new one:

Finally, the court recognizes that if the Motion Picture is considered obscene, it may not be eligible for copyright protection … Accordingly, the court recognizes that joining 27 defendants, a substantial number of whom may have no liability in this case, in a copyright infringement case when the copyright itself might be deemed invalid, could prove to be a costly and futile exercise for Nest Phase and the Court, and a damaging and unnecessary ordeal for the John Does.

This may just be a warning shot across the bow, but xbiz should take notice and put pressure on the small percentage that engage in this noxious extortion scheme before your freedom to create is undermined by the few. Based on the above, I predict future determinations severing Does, making use of this reasoning, which is problematic to say the least.

To end on a lighter note, I’m sending this out to the Frat Boy Trolls in response to the last week email (NSFW):

Featured comment

houstonlawy3r says:
August 13, 2012 at 10:10 pm

This is probably one of the best articles I have read yet. Quite frankly, after reading your article, I feel compelled to write something up as well because this is a momentous order (especially considering what Judge Howell just did in DC elevating the issue to a higher court).

The problem is that there is nothing to write because you’ve covered it all in a way that cannot be matched. Good for you. I would advise all readers to read the order and take this one seriously. The dominoes are falling and I suspect (and hope) this issue is coming to a resolution.

Rob came up with an article soon after this comment. The article compliments Raul and complements Raul’s observations.