Malibu Media, LLC v. Khan, No. 18 C 3028, Slip Op. (N.D. Ill. Mar. 27, 2019) (Leinenweber, J.).

Judge Leinenweber granted in part plaintiff Malibu Media’s Fed. R. Civ. P. 12(b)(6) motion to dismiss individual defendants’ declaratory judgment copyright and copyright misuse claims in this BitTorrent case involving use and sharing of pornographic video files.

The Court referenced the “deluge” of Malibu Media cases it has seen over the last several years against named and Doe individuals for allegedly using BitTorrent to download and share pornographic movies. The Court held that it would not dismiss defendant’s declaratory judgment copyright noninfringement claim. While a prevailing party in a copyright claim can seek its fees, to the extent Malibu Media were to dismiss its claim voluntarily, that could prevent defendant from seeking fees as a prevailing party. Allowing defendant to maintain the claim could help reduce some of the immense power imbalance in these claims because, should Malibu media voluntarily dismiss, defendant could still pursue its declaratory claim and seek fees. It also gives defendant an opportunity to clear defendant’s name, even if Malibu Media voluntarily dismisses.

Because defendant did not respond to Malibu Media’s challenge to the misuse claim, the Court dismissed that claim.

The Court dismissed defendant’s copyright misuse counterclaim, although left intact its copyright misuse affirmative defense. Malibu Media did not challenge the misuse affirmative defense and that was the appropriate posture for the argument.