Online content providers continue to struggle with the challenge of copyright infringement by BitTorrent users.  One of the most aggressive tacks is the one taken by Malibu Media, which, after instituting over 4,500 lawsuits in four years, has become one of the most controversial copyright litigants, responsible for over 40 percent of copyright litigations during that time.  Malibu Media’s owner, Colette Pelissier, explained her approach in a New Yorker article published last year.

In 2009, Pelissier created a product:  high-end adult films.  Subscriptions to Malibu’s web-site, X-Art.com, cost $40 per month for unlimited access.  Over the next two years the number of subscriptions grew exponentially, with 50,000 subscribers by 2011.  Then the growth stopped.  An investigation discovered that 300,000 people were watching pirated versions of Malibu Media’s movies each month.  So Pelissier decided that rather than watch her company fail she was going to have Malibu enforce its rights by filing copyright suits.

But Malibu Media has faced rigorous criticism for its approach. The problem, of course, is that being accused of unauthorized use of music, for example, does not carry the same risk of embarrassment that accompanies the accusation of illegally downloading pornography.  And that embarrassment creates the potential for wrongly accused defendants feeling coerced to settle.  This is an issue because Malibu Media is only able to identify these unauthorized users though the IP addresses that were used to download music, a method fraught with false positives.  These were among the issues that gave rise to an October 6, 2015 order by Judge Steven Locke of the Eastern District of New York to stay 88 pre-answer subpoenas.

After commencing a handful of copyright infringement actions in the Eastern District of New York against unknown defendants, Malibu Media sought expedited pre-answer discovery to uncover the identities of the “Does” they sued by subpoenaing the records of various ISPs. On September 4, 2015, the court granted Malibu Media’s motion, and found that “good cause existed . . . because [Malibu Media] lacked an alternative viable method of obtaining the Doe Defendants’ identities without a court-ordered subpoena.”  Order at 2, In re Malibu Media Adult Film Copyright Infringement Cases, 15-cv-04797-SJF-SIL (E.D.N.Y. Oct. 6, 2015), ECF No. 10.  On September 25, 2015, one of the Doe defendants filed a motion to quash the subpoenas.   According to that defendant, “good cause did not exist to permit expedited pre-answer discovery because, among other reasons:  (i) the common approach for identifying allegedly infringing BitTorrent users, and thus the Doe Defendant, is inconclusive; (ii) copyright actions, especially those involving the adult film industry, are susceptible to abusive litigation practices; and (iii) Malibu Media in particular has engaged in abusive litigation practices.”  Id. at 2-3.  Although Malibu Media’s opposition is not due until October 27, on October 6, Judge Locke entered an order staying discovery pending the resolution of the motion to quash, citing the “serious questions” raised by that motion.

The resolution of this issue will have to balance the problems inherent in identifying defendants through their IP addresses with the lack of alternative means to do so.