Copyright Protection For Pornography

Torrentlawyer BANNED from Bing Search Engine

by
new definition of malware

I am frustrated to share this news, but our entire TorrentLawyer.com website has been banned from the Bing Search Engine. Being banned from Bing Search Engines means that our 10+ years of content have also disappeared from DuckDuckGo, and all other search engines which obtain their results from Bing.

Hundreds of articles have disappeared overnight from being banned from Bing Search Engines… by the push of a button.

Our TorrentLawyer blog has hundreds of articles that we have written since 2010 on the copyright troll problem, and now all of that work and all of that information has DISAPPEARED OVERNIGHT because someone at Bing did not like our content.

We contacted Bing multiple times about the issue, and they merely said that our content “violated their guidelines” and thus we are banned from their search engine. When we asked them for further details, they refused to give us anything other than, “Refer to our guidelines. We have looked at your website and have determined that it violated our guidelines.“

I have looked at the guidelines, as have other attorneys. Our only conclusion is that our TorrentLawyer website violated their guidelines because “we say so.”

Our website has been attacked hundreds of times over the years by those that do not want our content shared.

Behind the scenes, over the years, our website has been constantly attacked, hack attempts have been blocked, and we have spent a considerable amount of time simply keeping the TorrentLawyer Blog website up.

  • We have signed up to Cloudflare so that our content still shows up when our website goes down (because of a successful intrusion into our website).
  • We have our website hardened to make it difficult for hackers to change the content of our website articles (this has happened).
  • We have implemented strict https only (encrypted SSL traffic) on our websites, and we have changed our http headers, sometimes breaking the functionality of the website itself… just to keep the website up and running.

We cannot control those who have a different opinion than us.

What we cannot control, however, is someone who has a viewpoint which differs from ours. Our law firm is a DEFENSE LAW PRACTICE. We defend people ACCUSED of committing crimes and violations of laws and rules. Such accused defendants deserve an attorney to represent them, even if public policy declares them as “bad” or “evil.”

With so much crime and things going on in our news, it is honestly shocking that our content should get so much concern. It is even more shocking that we would ever be banned from Bing’s Search Engine (or any search engine, for that matter — these are supposed to share useful content, not to moderate it).

Yes, we defend internet users accused of piracy. Yes, we defend clients in cases involving adult content. Yes, our website article titles sometimes contain NSFW terms. Yes, the copyright lobby hates that we exist, but we do.

Suspicion of “settlement factory attorneys” Uch. I really don’t want to go here.

What bothers me more than thinking that the pro-copyright lobby wants us to disappear is the thought that some of our so-called competition also wants us to disappear.

SETTLEMENT FACTORY SO-CALLED “BITTORRENT DEFENSE” LAW FIRMS

For years, we have called out practices by other law firms which we refer to as “settlement factories.” We have exposed their tactics, we have openly shared their scams.

Simply put, we have made enemies, and we have been attacked as a result.

Unauthorized Attempted Logins on our WordPress websites.

I have looked at the logs on our website’s firewalls. I have watched the attacks as they relentlessly happened over the years, as they happened. I have personally blocked hundreds of IP addresses who tried to log into the back end of our WordPress websites with usernames of only someone who would know us would try to use.

Why would a hacker try to log in as “Rob Cashman” or “houstonlawy3r”?

I frequently see logins with variations of “Rob Cashman” or “Cashman Law Firm” as the username, or more frequently, “houstonlawy3r,” which is a username someone would only to know to use if they knew that I post my Twitter comments as “houstonlawy3r.” This is too much of a coincidence; it is not a random hacker (we have those too that regularly try to get into our websites).

So as a sidenote, I cannot give up the suspicion that another law firm I have called out as a “settlement factory” [never by name — I don’t destroy reputations — but by their activities] have hired hackers who use bots and DoS attacks to take down our website.

Thus far, that strategy of breaking into my site didn’t work… but convincing someone at Bing to remove my entire website and the TORRENTLAWYER.COM domain — because our content allegedly “violated their guidelines” — that did work.

021722 Bing Search Performance
On January 6, 2022, our TorrentLawyer.com traffic from Bing Search Engines went to zero.

Whoever it is that caused our website to be banned from Bing has hurt our readers.

Yes, our business will be hurt by this — for over a month now, we have had ZERO WEBSITE VISITS FROM BING SEARCH ENGINES, and we are fine. It is simply unfortunate that someone would go so far as to try to make our ENTIRE WEBSITE disappear. This is simply wrong.

What Free Speech? What Free Press? What Rights of Appeal do we have when it is the Bing Search Engine itself which banned us?

There should be free speech and free press, but every day, that seems to be dwindling into the twilight. With so much pro-copyright legal power, damages for copyright infringement have done nothing but increase. It is simply surprising that the copyright lobbyists, the lawmakers, and the politicians have joined up with pornography companies and adult film companies to enforce their rights over the rights of the individual.

I get it — copyright protection for adult films is now “in” with the courts and the federal judges across the US. I have nothing wrong with this, even though it is still my personal opinion as an attorney that there should be NO copyright protection for pornography because their content is not copyrightable.

Why I believe as an attorney that adult films should not be copyrightable.

Specifically, see this article of mine from 2012, reason #3, “Scènes à faire” (or, Scenes a faire in plain text). Not only should adult films be classified as obscene, and thus ineligible for copyright infringement, but rather, every adult film has the same scenes, the same acts, the same genres, the same nurse, police outfit, or story line. Only the actors are different, but the scenes are all the same (mixtures of various acts in one order or another).

However, copyright protection should allow a copyright holder to go to a court and get an INJUNCTION to force a website to take down a web page illegally hosting copyrighted content. The Digital Millennium Copyright Act (DMCA) allows copyright holders to send DMCA copyright violation notices to internet users directly telling them to “cut it out, or else.”

Copyright holders have many ways to enforce their copyright rights, which their intended outcome should be TO STOP THE INFRINGEMENT OF THEIR COPYRIGHTED CONTENT.

Instead, copyright holders have resorted to using the federal courts “as a sword, rather than a shield.” They wield a federal court lawsuit like a weapon to hold that sword over the heads of individual downloaders who are sued as “John Doe Subscribers” in copyright infringement lawsuits.

And, instead of trying to take down the copyrighted content which was put on a particular website without their permission, they use the federal court lawsuits to solicit (dare I say extort) thousands of dollars from each accused defendant in return for their promise not to name and serve that defendant in the federal court lawsuit.

STOPPING THIS (misuse of the US Copyright Laws) has been the focus of our Cashman Law Firm PLLC law firm since 2010. It is not that we are piracy friendly (as some search engines might think), and it is not that we are promoting piracy or copyright infringement in any way, shape, or form. WE ARE NOT.

We are simply trying to stop the copyright trolling problem. For now, that means 1) teaching internet users about the schemes and methods of the copyright holders to avoid being sued in a copyright infringement lawsuit, and 2) defending accused downloaders who have found themselves entangled in a lawsuit.

Until now, we relied on Search Engines to share our content.

Until now, we relied on the search engines to share our content with would-be readers. The logic is that if we provided good quality content, and if we complied with the rules and guidelines of each of the search engines (e.g., having content in a specific format, properly marking up our websites so that search engine bots and crawlers will be able to understand our articles, etc.) we will be listed on the search engines where readers could find our content. This is not “SEO.” This is simply providing good and valuable content.

We never anticipated that our entire website would be taken down by the Bing Search Engine.

However, what we at the Cashman Law Firm, PLLC could not anticipate that there would be forces beyond our control who could make our content DISAPPEAR without warning, without us being able to contest any opposition to our content, and unilaterally without any oversight.

This happened when we were banned from the Bing Search Engine in January, 2022. Overnight, our website went from being listed on the top of the search engine results to being banned by Bing and delisted COMPLETELY from their search engine, as if our content never existed.

Banning TorrentLawyer.com from Bing causes us to be delisted also from DuckDuckGo, Brave, other privacy-based search engines.

Again, being banned from Bing’s search engine isn’t the issue. The fact is that so many other search engines use Bing’s search engine results when pulling content which will show up on THEIR search engine’s results. This includes search engines such as DuckDuckGo, the new Brave search engine, and pretty much every other “anti-Google,” “anti-tracking,” “pro-privacy” search engine. These search engines are right in line with our views and beliefs, yet our TorrentLawyer website is now banned from those websites too.

If you search “site:https://www.torrentlawyer.com” on any Bing Search Engine (or on any of the DuckDuckGo or related search engines), you will find that now ZERO articles show up. At the bottom of the search engine page, you will now see a notation that all content from this website has been removed.

TorrentLawyer.com banned from Bing Search Engine.
Search engine results: TorrentLawyer.com banned from Bing Search Engine.

Now we know we cannot rely on the search engines to deliver our content.

In sum, we cannot control the search engines — we know that now. “Fairness” and “Free Speech” are no longer concept that protect our content from being erased from history.

We are asking for YOUR help to share your thoughts on how we can deliver content to you. Solution #1: GitHub Page.

We do have enough of a following over the years to still provide content to our readers, even if we are no longer on the search engines. The challenge now is how to present our content in this new pro-censorship environment on the website itself.

GitHub Suggestion Page: https://github.com/TorrentLawyer

For this reason, I have started a GitHub page at https://github.com/TorrentLawyer. Assuming they are willing to allow us on their website, we will be seeking your assistance on how to properly present content on our website and handle issues that pop up.

If you see anything wrong with our TorrentLawyer Blog website or our Cashman Law Firm PLLC website, please log into GitHub and open up a new issue on our GitHub page, and let me know that a particular issue exists.

If you can suggest a change to our website, or a suggestion on how I can properly present the hundreds of articles and posts in a way that would be useful and accessible to you as the reader, please open up an issue on our GitHub page and let me know.

What we are doing now with the Bing Search Engine to fix the problem.

As far as being banned from Bing’s Search Engine, we are currently working to eliminate any content which they might find as misinformation, harmful, or offensive. I will be removing any category which references adult films, and I will be removing brand names of companies like Strike 3 Holdings, LLC, including references to their “Tushy, Vixen, Blacked, and Deeper” brands.

However, honestly, I am concerned that this will not fix the problem. I suspect their problem with our website is its so-called “harmful” content.

We cannot remove the fact that we defend accused downloaders accused of piracy. This, and the implications that follow will continue to have those who are against our content continue to attack our site, and they will continue with their efforts to de-list us from the search engines.

I hate that we are here, but we are here.

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CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.


    NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

    Judge rules (Guardaley) German evidence is insufficient.

    by
    malibu-media-case-consolidations

    This is too important of a case not to mention, but I simply have not had the time to write it up (nor do I think that I could have done a better job than what was written up here). Read this article and understand that with a fight, Malibu Media LLC cases can and do crumble.

    The most fascinating part about this Colorado federal court ruling is that it came from US Magistrate Judge Michael Hegarty (who has been a thorn in the side of us defense attorneys because his rulings have until now been consistently pro-copyright troll). This is a fascinating revelation which will perhaps smother the Malibu Media, LLC v. Doe cases filed across the U.S.

    [HINDSIGHT: (2017 UPDATE:) LITTLE DID I KNOW AT THE TIME THAT GUARDALEY WAS NOT ONLY THE FORENSIC COMPANY BEHIND THE MALIBU MEDIA, LLC LAWSUITS, BUT ALL OF THE MAINSTREAM MOVIE LAWSUITS FILED ACROSS THE U.S. (PRESUMABLY WITH THE MPAA / RIAA AS THE INVESTOR BACKING THE LAWSUITS).]

    —
    FOR MORE INFORMATION ABOUT MALIBU MEDIA, LLC:  Click here for more general information about Malibu Media, LLC lawsuits, their tactics, and their strategies.

    FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at [email protected], or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

    CONTACT FORM: Alternatively, sometimes people just like to contact me using one of these forms.  If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

      NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

      shalta boook now cta

      NY Judge asks Malibu the ‘is porn copyrightable’ question.

      by
      malibu-media-case-consolidations

      Judge Alvin Hellerstein of the Southern District of New York just did the right thing in denying “expedited discovery” which would allow Malibu Media, LLC to send a subpoena to the Time Warner Cable ISP, thus preventing Malibu Media from learning the identity of the John Doe Defendant.

      The copyright troll blogosphere is no doubt about to erupt with this story — in fact, the Twitter feed is already bustling with comments from Sophisticated Jane Doe (@FightCopytrolls), Raul (@Raul15340965), and other bloggers. Bottom line, a United States District Court Judge just said “no” to allowing Malibu Media’s extortion scheme to proceed.*

      Judges are the gatekeepers of the law, and the reason these cases have been allowed to fester and infest our legal system is because judges [until now] have been asleep. They have blindly allowed the plaintiff copyright trolls the ability to wreak havoc on the accused downloaders by allowing the copyright trolls access to them so that they can intimidate, harass, embarrass, and threaten to deplete all of the funds of the accused defendant’s [sometimes life] savings in order to avoid the costly alternative of litigating a copyright infringement lawsuit.

      For the purposes of this article, I am focusing on two points which I found to be interesting in today’s Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04369; NYSD) ruling (see Judge’s order here).

      RULING 1: OBSCENE PORNOGRAPHY MIGHT NOT BE ELIGIBLE FOR COPYRIGHT PROTECTION.

      This ruling (based on Judge Marrero’s Next Phase Distribution, Inc. v. John Does 1-27 (Case No. 284 F.R.D. 165, 171 (S.D.N.Y. 2012)) case is the “third rail” issue in copyright troll litigation. Do copyright rights extend to pornographic materials? What if they are considered “scenes a fair,” or scenes which contain the same “roles” and “characters” as in other films — are these considered copyrightable (keep the same story, scene, genre, and roles, but switch the actors)? Are these works considered art? And, what happens if the copyrighted film violates one or more obscenity laws — does that film still have copyright protection?

      These are just questions, and to date, they are unresolved. However, the fact that Judge Hellerstein brought it up means that he is seriously considering whether this should be a basis to deny copyright infringement claims against John Doe Defendants.

      Reference: See my 8/14/2012 article entitled, “How to make bittorrent cases go away once and for all…” (Reason 3)

      RULING 2: MALIBU MEDIA ACCUSES A JOHN DOE DEFENDANT, BUT PROVIDES **NO EVIDENCE** THAT THE “JOHN DOE” DOWNLOADER IS THE ACCOUNT HOLDER. THUS, THERE IS **NO BASIS** FOR SUING THE ACCOUNT HOLDER OR IMPLICATING THE ACCOUNT HOLDER AS BEING THE “JOHN DOE” DOWNLOADER DEFENDANT IN THE LAWSUIT.

      This has always been a blatantly simple, and yet tough argument to describe. But when you think of it, the simplicity — once it jumps out at you with the “aha!” moment — is charming and unforgettable.

      In short, Malibu Media can prove that SOMEONE downloaded one or more of their titles. However, they do no prove (or even assert any evidence) to indicate that it was the account holder who downloaded the copyrighted film… so what legal basis does Malibu Media have to sue the account holder?? Judge’s answer: None.  In order to make a “prima facie” case that would convince a judge to rubber-stamp a subpoena permitting the copyright holders to force an ISP to turn over the identity of the account holder (whether or not he is the actual downloader), the copyright holder needs to provide some “link” identifying the actual downloader as being the account holder. No link is ever provided in Malibu Media’s pleadings, and thus in legal terms, the pleading “fails” and the copyright holder’s request for expedited discovery should be denied.

      That’s it.  My two cents, for what it is worth.

      Congratulations to District Judge Hellerstein for a brave and correct ruling on the law. Now if all of the other judges in the Eastern District of New York would fall in line with this ruling and abandon the “my court, my world, my rules” mentality, we can put an end to these cases once and for all.

      Additional Reference:
      Fight Copyright Trolls (SJD): Citing previous Malibu Media’s sheer abuse of court process, New York judge denies early discovery

      *UPDATE (7/7, 6:30am): I am surprised that there are not more articles on this topic.  This should be all over the news for other NY judges (and judges in other federal district courts) to see.  Unfortunately, if other judges do not see [and act on] this ruling, then it gathers dust and it has little-to-no effect on future Malibu Media, LLC lawsuits. …and the scheme continues unhindered.

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      CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

        NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

        shalta boook now cta

        OTHER RECENT MALIBU MEDIA (NYSD) CASES:
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04713)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04717)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04720)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04725)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04728)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04729)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04730)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04731)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04735)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04736)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04738)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04732)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04733)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04734)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04741)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04742)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04743)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04739)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04740)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04744)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04745)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04367)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04374)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04370)
        Malibu Media, LLC v. John Doe (Case No. 7:15-cv-04377)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04368)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04369)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04371)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04373)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04378)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04380)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04381)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-04382)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03130)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03135)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03137)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03138)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03143)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03144)
        Malibu Media, LLC v. John Doe (Case No. 1:15-cv-03134)

        “GOING TO TRIAL: BAD!”

        by

        “GOING TO TRIAL: BAD!”

        I was watching the DC Malibu Media, LLC case which was assigned to Judge Facciola, and on 9/25, there was an order which concerned me. In view of PA Judge Baylson’s order forcing Malibu Media to name and serve defendants, or else, this order became relevant.

        We all know that Judge Facciola is against the internet downloader. He is also stubbornly in favor of copyright trolls, pornography production companies, and the protection of copyright rights for obscene materials. This is why his order in the Malibu Media, LLC v. John Does 1-7 (Case No. 1:12-cv-01119 [12-1119 (EGS/JMF)]) case in DC was controversial.

        In stark opposition to my “GOING TO TRIAL: GOOD!” article that I posted just moments ago, it appears as if Judge Facciola has figured out a way to TRAP internet users into being named as defendants, and to embarrass them and force them to fight their cases.

        In Facciola’s 9/25 order, the judge allowed Malibu Media, LLC to send subpoena notices to the ISPs. He allowed them to even get all they wanted regarding the contact information of the suspected John Doe Defendants. Here’s the catch — Facciola ordered that MALIBU MEDIA, LLC MAY NOT SETTLE ANY CASES WITH JOHN DOE DEFENDANTS BEFORE NAMING THEM FIRST.

        “4. Plaintiff may not engage in any settlement discussions with any persons identified by the ISPs in response to the subpoenas.”

        We all know that Malibu Media sues people in the states in which they live, and thus personal jurisdiction and venue is usually proper in their cases. In addition, we know that Malibu Media’s business model is to call defendants and scare them into settling for thousands of dollars at a time. We also know that the lawsuits implicate the defendants for ONE film only, but when defendants call up to settle, they are forced to settle ALL ALLEGED CLAIMS AGAINST THEM (which can sometimes be 15 “hits”, 25 “hits” — or more recently, I’m hearing numbers in the 40’s — which can amount to settlements in the TENS OF THOUSANDS). This means that even if a defendant SUCCEEDS in fighting their case, Malibu Media, LLC can still turn around and sue them again, and again, and again (bad odds for a downloader interested in x-art’s content).

        So now, settlement is NOT an option for Malibu, as their hands are tied by the judge’s order (and whether they’ll comply on the back-end is a dangerous proposition that could get them in trouble if a Doe who settles reports that settlement to the court). Or will it with Judge Facciola as the judge?

        Here is my advise with this case. For the putative defendants, your option is not to settle your case, but simply to make yourself someone the plaintiffs do not want to name and serve. In other words, have your attorney contact Malibu Media with evidence of your innocence. I suspect that if we persuade them that you have a good defense, they will decide to name and serve OTHER DEFENDANTS (and not you).

        So in sum, I expect that Judge Facciola will have his way, and John Doe Defendants will necessarily have their reputations tarnished by being named in a pornography lawsuit. To those defendants who ARE named, my only advice is to have your attorney put up a good fight. Quite frankly, at this point, some of these copyright trolls deserve one.

        How to make bittorrent cases go away once and for all…

        by

        I am very excited to see that judges are starting to get involved in the discussion of whether it is proper to sue tens, hundreds, or thousands of John Doe Defendants accused of downloading copyrighted films (usually pornographic in character, and using bittorrent to do so) in one lawsuit.

        Just a few days ago, I wrote about Judge Beryl Howell’s opinion in D.C. where she ruled that joinder of any number of defendants in a bittorrent lawsuit is OKAY. Her reasoning centered around the fact that the defendants are unnamed, and [ignoring the mass extortion scheme that is causing many families to hand over their life’s savings to the copyright trolls] that it is more “convenient” for the court to manage one lawsuit with thousands of UNNAMED Doe Defendants rather than trying to manage thousands of lawsuits with one defendant in each lawsuit.

        This evening, I read an article from Sophicticated Jane Doe’s “Fight Copyright Trolls” (kudos to Raul) entitled “Judge Marrero: Pornography may not be entitled to copyright protection.”

        Quite frankly, the article is not only one of the best articles I have read yet, but it teaches and describes the issues in a very methodical order and in a way that cannot be replicated in any blog post of mine, and for this reason, I highly suggest that you read 1) that article, and 2) the actual order (which is equally a good read for those interested in the topic).

        My contribution is that although this order predated Judge Howell’s order, it addressed the split not only in the Southern District of New York, but it also describes the issues surrounding bittorrent copyright infringement cases in which judges have been ruling inconsistently across the federal districts. It demonstrates that the issues are heating up, and that there is a need for consistent application of the joinder rules across the federal districts.

        The funny part about this order is that whether or not joinder was proper in this case — “Next Phase Distribution, Inc. v. John Does 1-27” (Case No. 1:12-cv-03755-VM [or 12 Civ. 3755 for those New York attorneys who don’t like federal case law nomenclature], which is being heard by Judge Marrero in the U.S. District Court for the Southern District of New York) — the SDNY Judge Marrero decided to sever and dismiss John Does 2-27 for reasons INDEPENDENT OF THE JOINDER RULES. Read on.

        Here are the three reasons [independent of joinder] which Judge Marrero used to sever and dismiss the defendants:

        Reason one – “it would be impossible to manage the discovery of 27 different defendants.”

        Imagine seizing 27 different sets of computers and dealing with 27 different sets of discovery, where each defendant held their own depositions, interrogatories, and where each defendant answered their complaint with potentially different and incompatible defenses (e.g., it wasn’t me, it was my son, it was my neighbor; I have an open wireless connection, my wifi was hacked, etc.). It would essentially be like holding 27 different trials in one trial. For this reason, the judge decided to sever and dismiss the defendants.

        Reason two – “it is conceivable that several of the John Does did not actually download the copyrighted film.”

        According to Mike Meier’s own admission, “roughly 30% of names turned over by ISPs are not those who actually shared or downloaded the videos.” Now while this statement can easily be taken out of context, it points to the reasonable doubt as to whether an accused infringer is actually the one who downloaded the copyrighted film. What made me stop and stare at the screen was that I was so excited that the judge explicitly stated that “an IP address does not necessarily correlate to a particular alleged infringer because several people may access the same IP address.”

        There is more to this statement than the judge realizes, and while it has application to IP addresses changing and being used by multiple infringers (specifically regarding cases where the plaintiffs track THE IP ADDRESS regardless of whether it was issued to the subscriber at the time the downloads happened), in this case, it has the simple application that the subscriber is akin to the owner of a telephone landline account, and many people come in to use their phone — the account holder is not the one that makes each and every call, and for this reason, the account holder cannot be held liable for something that someone else did on their account. Back to the case.

        Reason three – “if the Motion Picture is considered obscene, it may not be eligible for copyright protection.”

        I cannot state more clearly that as Raul described in his article, this certainly is a clear shot across the bow that I have been sensing in many cases for quite a while now — that pornographic films are obscene, and that they do not qualify for copyright protection.

        All I could say about this is that a number of attorneys and I have discussed this issue, not in the context of whether a “cheating housewife,” a “babysitter,” or any genre is copyrightable in and of itself (see the topic of “Scènes à faire”), but in the context of simply whether an obscene film is copyrightable at all.  For a long time, it wasn’t.  Then NY and some states started to allow it, and now perhaps courts will start reconsidering the topic. For an interesting write-up on the topic, see here.

        In short, judges are getting tired of these pornography lawsuits, and I am getting tired of judges granting early discovery to copyright trolls without restrictions.

        For this reason, I am happy that judges are starting to smarten up, and hopefully they will all start taking my advise that if they are going to grant early discovery to the copyright trolls, 1) the contact information of the accused John Does should remain private to the copyright trolls — only the CITY AND STATE of each accused Doe Defendant should be provided; 2) if contact information is to be provided, that it be “in camera” meaning that the ISPs should produce the information NOT TO THE COPYRIGHT TROLLS, BUT TO THE COURTS (so that the extortion scheme where plaintiff attorneys scare defendants into settling), and 3) the information provided on each John Doe Defendant only be permitted to be used IN THE INSTANT CASE (and not in a subsequent case where the plaintiff attorney threatens that “unless you settle now, we will ‘name’ you in a lawsuit in your home state.”

        Judge Forrest (and now Judge Marrero) has put one more spin on this which is commendable — that the identity of the accused Doe Defendant be kept anonymous on the court’s docket. While this is admirable, it is not enough because defendants don’t only settle out of embarrassment for being associated with a pornography case — they settle because it is cheaper to pay the plaintiff attorneys off than it is to fight them. This is a sad and broken part of the legal system, and putting the protections I outlined above would stop the copyright trolls in their tracks and would make these cases go away once and for all.

        —
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