July 16, 2013 | By Mitch Stoltz

EFF Calls For Court Sanctions For Copyright Troll's Public Humiliation Tactic

EFF fought back against a particularly nasty copyright troll tactic this week. Lawyers representing the adult film producer Malibu Media, LLC file long lists of movie titles on the public record, accusing an Internet subscriber of copying those movies illegally. Among the titles on that list are many adult films with very embarrassing titles. The lawyers then send a copy of the court filing to the subscriber along with a demand for money. The threat is obvious - either pay up, point a finger at a friend or family member, or be named in a public lawsuit as a habitual user of hard-core porn. Faced with these threats, many people pay thousands to the lawyers to make the threat go away - whether they were responsible for illegal downloading or not. But more and more judges are catching on to copyright trolls' abuses of the justice system.

Malibu Media, which runs the site "x-art," files civil complaints in courts around the country. Each complaint accuses an anonymous Internet user of illegally downloading and sharing one or more of Malibu's movies. But the complaint goes further: Malibu attaches a list of other movies and files that Malibu accuses the user of copying illegally. Some of them have titles that are far more lewd and embarrassing than the titles of Malibu's own movies. But Malibu doesn't own the copyright in those other movies, and can't actually sue over them. There's no legitimate reason to attach that list of other titles to a complaint, because complaints in federal court are not the place for laying out evidence. They're just to initiate a case and let the other side know what the case is about.  But adding some really embarrassing titles to a complaint and filing it on a public court docket ups the embarrassment factor and discourages innocent people from standing up for themselves in court. (It's not clear what those extra titles would add to a court case, anyway - most judges would bar them from being read to a jury.)

Magistrate Judge Stephen L. Crocker didn't like this tactic. He froze eleven of Malibu's cases in western Wisconsin, and ordered Malibu's lawyer to explain why she shouldn't be sanctioned for violating court rules. Filing paperwork with the Court with no purpose except to harass or embarrass an opponent is a big no-no. Judge Crocker wondered why Malibu would file a list of movies with embarrassing titles that Malibu doesn't own and can't sue over.

Malibu's attorney responded with a 37-page defense, insisting that Malibu's motives are pure and that it had legitimate reasons for filing the list of titles. EFF, along with Chicago attorney Erin Russell, stepped in with a friend-of-the-court brief to give the court another perspective. EFF argued that there's no legitimate reason to plaster the public record with lists of lewd but irrelevant movie titles. In fact, EFF told the court, there's no real reason to file those titles except to up the embarrassment factor and intimidate defendants into not fighting back - even if they didn't download anything.

Copyright trolls use the power of the courts to gather the names of Internet subscribers and threaten them into paying up. But more and more judges are casting a critical eye on these tactics. Courts have largely put an end to the trolls' practice of suing dozens or hundreds of John Doe defendants in a single lawsuit, at least in the federal courts. And a federal judge's sanctions against the notorious Prenda Law outfit - including a referral to federal prosecutors for fraud on the court and possible tax evasion - were a wake-up call to lawyers and copyright owners.

Still, the bullying tactics continue. Even without the public embarrassment factor, copyright law gives trolls a big club to wield - copyright holders can get damages of up to $150,000 per infringement without even having to prove they were harmed. Until the law is fixed, there will always be those who will misuse it to make some quick cash. But we're glad that Magistrate Judge Crocker and other judges are casting a critical eye on improper threats of public humiliation as a way to earn cash from copyrights, and we hope this tactic, too, is shut down for good.


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