If You Like Online Porn, and You Live in New York, You Might Be Getting Sued

Malibu Media, which runs the website X-art.com and is one of the country’s most prolific copyright litigators, has brought its crusade against porn piracy to the Big Apple.

In the last few months, Malibu Media has filed 89 copyright infringement suits in New York’s federal courts, accusing defendants of illegally downloading what the company describes as its brand of upscale, “beautiful erotica.” It’s the latest salvo in what has become a long-running litigation strategy — some characterize the company’s practices as extortionate copyright trolling — that has landed thousands of discerning BitTorrenters in the company’s legal crosshairs.

Attorney Jacqueline James, who is handling the cases in New York, says Malibu Media is simply trying to protect its intellectual property from what it claims is 80,000 illegal downloads every month. And she says she’s targeting only the worst offenders.

“We have only filed suits against IP addresses that have repeatedly, and I mean repeatedly, infringed on large numbers of our individual copyrights in a very small time,” James says.

Armed with a list of titles like Double Daydream and Chloe Loves Carl Part 2, James has been filing complaints against so-far unsuspecting online users, all of whom are linked to IP addresses associated, she says, with “large scale” infringement. The identities of the users aren’t clear just yet — they’re identified only as “John Does.” As the suits progress, the relevant internet service providers will cough up the identities associated with the IP addresses, and users will face claims for illegally downloading the company’s copyrighted films.

Malibu Media has been filing infringement cases of the same kind in other states for years. Mitch Stoltz, a staff attorney with digital-freedom advocacy group the Electronic Frontier Foundation, thinks the company’s tactics are designed to intimidate, and even shame, with the goal of extracting settlements. The San Francisco–based EFF has been monitoring Malibu Media for a while now, and regards it as one of the more egregious abusers of copyright law.

“They’re targeting individual internet users, and they’re using what I might call strong-arm tactics to convince them to pay them cash settlements,” Stoltz says.

Stoltz says it can be hard to link an individual user to an IP address; people share internet connections, and an unprotected network can be accessed by virtually anyone. Even if the company somehow targets the wrong user — “they try to imply that the person who pays for the internet is the one who’s liable,” Stoltz says, which isn’t accurate — the target of the suit may still feel compelled to settle a case brought by a well-funded and aggressive company. The fact of being publicly sued over downloading pornography might add an extra element of pressure, he adds. And “even if everything is above board, there is a power imbalance. People pursuing a strategy like this have to tread very carefully,” he says, to avoid becoming abusive.

Although Malibu Media seems to have softened its strategy recently, no longer targeting dozens of IP addresses in a single filing, Stoltz says the company is still troublingly aggressive, and the penalties it extracts can be significant: One defendant in Michigan paid out more than $40,000 last year.

James, the New York–based attorney, says she’s not interested in accidental downloaders or shaming her opponents. She adds that if the targets of the suits ask the court to proceed under cover of anonymity, she wouldn’t oppose the idea.

“The reason we’re targeting individual IP addresses is not because…we’re evil, it’s because that’s where the infringement is,” she says. “We look for infringement that’s on a large scale and in a short amount of time. If somebody made a mistake, I don’t want them.”

She says users may not think about all the, ahem, hard work that goes into producing a given piece of art. But without paying customers, media companies can’t pay their employees, she adds. All her clients are trying to do is ensure that they can continue to produce the films that many people, apparently, want to watch without paying for.

“We just can’t compete with free,” James says. “And quite frankly, it’s not fair to our paying subscribers.”