September 17, 2013 | By Kurt Opsahl and Mitch Stoltz

Judge Fines Copyright Troll Lawyer for Harassing Tactic Used Nationwide

One by one, courts are recognizing and shutting down copyright trolls' most unscrupulous legal tactics. Last week, a federal court in Wisconsin sanctioned a lawyer for adult film producer Malibu Media (also known as X-Art) for filing lists of "disturbing lewd, unusual and unredacted titles of pornographic films allegedly also downloaded by the defendant" but not produced by Malibu, in eleven lawsuits. Judge William Conley said that the list "appears calculated principally to harass defendants." The ruling will hopefully put a stop to this awful tactic nationwide.

More important still, Judge Conley recognized that lawsuit campaigns against Internet subscribers "already give off an air of extortion" even when plaintiffs' attorneys follow all of the rules. That's why more and more judges are looking carefully at these suits for any sign of abusive tactics.

The law firm of Lipscomb, Eisenberg, and Baker coordinates Malibu Media's lawsuit campaign - 1,078 lawsuits and counting since May, 2012. LEB or local attorneys file civil complaints in federal courts around the country, using a form created by attorney M. Keith Lipscomb. Each complaint accuses an anonymous Internet user of illegally downloading and sharing one or more of Malibu's movies (e.g. Malibu Media LLC v. John Doe subscriber assigned IP address 24.183.51.58).

But starting sometime in 2013, Malibu's complaints started to go further: Malibu began attaching lists of "other movies not subject to plaintiff’s copyright" allegedly downloaded by the defendant. Some of them have titles that are far more lewd and embarrassing than the titles of Malibu's own movies - the judge compared Malibu titles like “Red Satin” or "Tuesday Morning, with other titles like "Young Blonde . . . Dog" and "Dirty . . . Stories 5." The ellipsis is the court's, but you can imagine what it might be. As the court explained, "the lewd and obscene nature of the graphic titles and content are enough to persuade many initially anonymous defendants to reach early settlements out of fear of being 'outed' should the lawsuit proceed."

The federal court in Wisconsin didn't like this tactic. It ordered Malibu's lawyer Mary Schulz to explain why she shouldn't be sanctioned. EFF and attorney Erin Russell filed an amicus brief explaining why the embarrassing list - which comes from from what Lipscomb called "expanded surveillance" - served "no legitimate purpose," but would only "coerce defendants to settle, based not on the merits of the case but on the reputational harm of being publicly associated with hardcore pornography."

In response to the court, attorneys Lipscomb and Schulz and the cofounder of Malibu Media all signed declarations saying that the purpose of the lists was not to harass defendants.  But Judge Conley didn't buy it: "Malibu Media’s denials do not pass the smell test, and any denial of improper motive by its counsel does not pass the laugh test," he wrote. The court fined Ms. Schulz and her law firm $200 per improper exhibit, or $2,200 for the eleven cases.

While $2,200 is not a huge sum, the ruling sets an important precedent. The court held that attaching unnecessary lists of embarrassing titles is a violation of the Federal Rules.  If Malibu Media does not remove this attachment from the hundreds of other cases that it has filed, it faces not only the prospect of further sanctions, but judges that might raise the amount per case for continuing in the face of such a clear ruling.

Malibu Media has learned from the mistakes of other trolls - this year Malibu Media, according to Lipscomb, "ceased suing people in joined suits and began to only sue defendants individually." Now it is time for Malibu to learn from its own mistakes, and take immediate action in all its other cases.

Even if Malibu stops this practice, copyright trolling is far from gone. It will likely be with us until Congress and the courts do something about copyright law's ridiculously high penalties, which can make mass litigation into a profit center. But judges are paying more and more attention, and often the closer they look, the less they like. Every judge who stands up to these bullies and says "not in my courtroom" brings us closer to justice.


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