The Pornography Copyright Troll: Sword of Antipiracy or Abuse of Antiquated Law?

A “copyright troll” should not be confused with a “patent troll”.

A Patent Troll is somebody who tries to make a lot of money off a patent that they are not practicing and have no intention of practicing and … [have] never practiced., Inc. v. Furnace Brook, LLC, 420 F. Supp. 2d 1217, 1218 (D. Utah 2005) aff’d, 191 F. App’x 959 (Fed. Cir. 2006). Representative Howard Berman stated that patent trolls have a “negative effect on innovation” and spoke of countless situations in which patent holders, making no effort to commercialize their inventions, lurk in the shadows until another party has invested substantial resources in a business or product that may infringe on the unutilized invention. The patent troll then steps out of the shadows and demands that the alleged infringer pay a significant licensing fee to avoid an infringement suit. Id.

A Copyright Troll is an owner of a valid copyright who brings a copyright infringement action “not to be made whole, but rather as a primary or supplemental revenue stream.” James DeBriyn, Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages, 19 UCLA Ent. L.Rev. 79, 86 (2012). Third Degree Films v. Does 1-47, 286 F.R.D. 188, 190 (D. Mass. 2012).

With the evolution of technology, copyright infringement has become a true concern for many copyright holders. According to the Recording Industry Association of America (RIAA), since peer-to-peer (p2p) file-sharing site Napster emerged in 1999, music sales in the U.S. have dropped 53 percent, from $14.6 billion to $7.0 billion in 2013. As Napster was a plague to the music industry as alleged by RIAA, its technological successor, BitTorrent, has become a plague to the movie industry. And just as p2p software has evolved from Napster to BitTorrent, the copyright troll has evolved with technology, specifically, the entrance of pornography copyright trolls. With the cost of production arguably low in many pornographic works, the potential profit margin through litigation as a primary revenue stream may be huge.

Since 2011, pornography copyright holders, such as plaintiffs’ K-Beech, Patrick Collins, First Time Videos, and Malibu Media, have filed thousands of cases throughout the United States. As early as 2013, Courts around the country were becoming troubled by the rise of so-called “copyright trolls” in the adult film industry, who file mass lawsuits against anonymous Doe defendants with the hopes of coercing settlements. Malibu Media, LLC v. Brenneman, No. 3:13-CV-00332-PPS, 2013 WL 6560387, at *2 (N.D. Ind. Dec. 13, 2013). President Obama has personally condemned the practice of copyright trolls and patent trolls clogging the courts and Chief Federal Circuit Judge Randall Rader, in a New York Times article, made similar comments. Some law firms and lawyers representing these plaintiffs, such as Prenda Law, have even faced sanctions and ethical issues which could place at risk their ability to practice law.

Many pornography copyright holders have ceased their role as pornography copyright trolls, likely given the pushback by Courts; John Doe defendants; the Blogosphere, including websites such as Fight Copyright Trolls and Die Troll Die; and the Electronic Frontier Foundation. However, many so called copyright trolls still remain.

Of the most prevalent of the remaining pornography copyright holders utilizing litigation as a primary or supplemental revenue stream is Malibu Media doing business as (caution: adult content). Malibu Media has filed over a thousand copyright infringement lawsuits throughout the United States against John Doe defendants and continues to file these lawsuits on a rolling basis, typically against one defendant IP address that has allegedly uploaded one or more bits of multiple movies to Malibu Media’s investigators through BitTorrent, or through another software program utilizing similar technology.

Malibu Media typically requests “statutory damages” as an award of damages pursuant to the Copyright Act, specifically 17 U.S.C. § 504(c)(1). Such “statutory damages” fall between $750.00 and $30,000.00, but can be increased in the court’s discretion up to $150,000.00 if the court finds that the infringement was committed willfully and reduced to $200.00 if the court finds that the infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright. 17 U.S.C. §504(c)(2).

When Congress drafted this language, it is likely that it did not contemplate that an individual would use technology such as BitTorrent to quickly transfer bits of a whole movie or music file for personal use and the result be an infringement upon a copyright holder’s exclusive rights. Rather, it is much more likely that Congress contemplated that a corporation, or other party with substantial assets, would be the tortious actor infringing upon another corporation’s exclusive rights in a copyright. Other than a fair use defense, which is still a bit of a grey area, there is no carve out for personal use by an individual in the United States for copyright infringement and may be one of the many reasons there is a push for reformation of present U.S. copyright laws.

Multiple questions still remain.

  • Are pornographic copyright holders being forced into litigation?
  • Is this the only way they can to survive and fight the onslaught of widespread piracy?
  • Are they the sword of antipiracy?
  • —OR—

  • Are pornographic copyright trolls abusing, now antiquated, copyright laws?
  • Should pornographic copyright trolls receive a windfall of damages under these laws?
  • Are these laws in immediate need of reformation?
  • According to a comment posted by an anonymous individual on the Fight Copyright Trolls Blog, Malibu Media typically requests $750.00 per copyrighted movie title as settlement. Unfortunately for Malibu Media, U.S. Federal Judge Sheri Polster Chappell set some unwelcoming precedent for Malibu Media just three days ago in a default judgment decision which consisted of forty-seven (47) alleged infringements, awarding Malibu Media only $6,000.00 in statutory damages, despite Malibu Media’s request for $1,500.00 per work in statutory damages, double the statutory minimum, or $70,500.00, exclusive of attorney fees. This award of $6,000.00 in statutory damages amounted to roughly $127.66 per work.

    Judge Chappell used Countryman Nevada, LLC v. Adams, No. 6:14-cv-491-Orl-18GJK, 2015 WL 574395, at *7 (M.D. Fla. Feb. 11, 2015) as a basis for determining the statutory damages, stating that Malibu Media’s request for $70,500.00 would provide Malibu Media a windfall and therefore is not warranted here. Clever Covers, Inc., 554 F. Supp. 2d at 1313 (“statutory damages are not intended to provide a plaintiff with a windfall recovery.”). It will be interesting to see whether or not other federal courts adopt a similar ruling to that of Judge Chappell’s ruling and how this ruling will effect settlement negotiations between Malibu Media and its defendants moving forward.

    Since 2011, McClanahan Powers has defended hundreds of defendants in torrent copyright infringement lawsuits throughout the United States against a variety of copyright troll plaintiffs. Please email us through our website to inquire into how the firm may be able to assist you.

    Innocent Copyright Infringers: The Importance of an Adequate Copyright Notice to Defeat Them

    In a previous blog entry we discussed the importance for photographers (and other artists) to digitally watermark their photographs. By digitally watermarking their work, photographers could seek additional damages in some situations in a copyright infringement lawsuit for the removal or alteration of such watermark under section 1203 of the Digital Millennium Copyright Act (DMCA). This is far from the only reason why artists of any variety should place an indication of ownership on their work. For copyright holders, an adequate copyright notice, whether digital watermark or standard imprint, may be even more important than the ability to potentially seek additional damages with respect to section 1203 of the DMCA.

    When a work is federally registered and published, a copyright holder will often place a copyright notice on the work (i.e., © Year Published, Name of Owner) as prescribed under sections 401 and 402 of the Copyright Act. The purpose of copyright notice, as highlighted by section 405(b) of the Copyright Act, is to protect innocent infringers. Koontz v. Jaffarian, 617 F. Supp. 1108, 1112 (E.D. Va. 1985) aff’d, 787 F.2d 906 (4th Cir. 1986). An innocent infringer is one or more parties who innocently violate an exclusive right under section 106 of the Copyright Act of a copyright holder in a valid copyright without knowledge of a copyright. Works in the public domain are primary examples of artistic expression that usually bear little or no copyright protection.

    Prior to the effective date of the Berne Convention Implementation Act of 1988 (BCIA), the owner of the copyright was required to comply with notice formalities when a work was published or with one of the savings clauses, or forfeit the copyright. Morgan v. Hawthorne Homes, Inc., CIV.A. 04-1809, 2009 WL 1010476 (W.D. Pa. Apr. 14, 2009). For works published before March 1, 1989, the effective date of the BCIA, that do not bear an adequate copyright notice, section 405(b) of the Copyright Act in some cases essentially restricts any liability for actual or statutory damages under section 504 of the Copyright Act provided that the work was publicly distributed under the authority of the copyright owner. This restriction on liability applies to any person who innocently infringes a copyright for any infringing acts committed before receiving actual notice that the work has been federally registered so long as he or she proves that he or she was misled by the omission of notice.

    While the defense of innocent infringement can impact the remedies available against a defendant for copyright infringement, it “will not constitute a defense to a finding of liability.” 4-13 Nimmer on Copyright § 13.08. Phoenix Renovation Corp. v. Rodriguez, 439 F. Supp. 2d 510, 517 (E.D. Va. 2006). Consequently, a copyright holder may still be able to recover actual profits obtained by the innocent infringer and may prevent future infringement now that the innocent infringer is on actual notice or require the innocent infringer to pay a license fee to continue exploitation of the work.

    An adequate copyright notice, with some specific exceptions, essentially nullifies the defense of innocent infringement in a copyright infringement action insofar as the defendant had access to published cop(ies) that bore an adequate copyright notice. Consequently, it is extremely important to provide an adequate copyright notice on any work being published in order to adequately defend against an innocent infringer defense. Such good practice will likely allow the copyright holder or rights holder, in many circumstances, to seek actual or statutory damages under section 504 of the Copyright Act in an action for copyright infringement.

    Copyright Registration and Copyright Claimant: What Happens If a Publisher, Studio, or Producer Mistakenly Puts Itself as Claimant?

    Under Section 201 of the Copyright Act, copyright in a work vests initially in the author or authors of the work. The author, however, is not always the party who claims ownership of the copyright when federal registration of the work is sought. Section 409 of the Copyright Act requires a copyright claimant to provide in an application for copyright registration the claimant’s name and address, and if claimant is not the author, a brief statement of how the claimant obtained ownership of the copyright.

    What is a Copyright Claimant?

    Unfortunately, the Copyright Act does not expressly define “copyright claimant.” Shortly after the Copyright Act was enacted, the Copyright Office published interim regulations that included a definition of “copyright claimant” for purposes of copyright registration. Under Chapter 37 of the Code of Federal Regulations, a copyright claimant is either: (i) the author of a work; or (ii) a person or organization that has obtained ownership of all rights under the copyright initially belonging to the author. The latter category, offered as a footnote in the Federal Regulations, which may soon be removed, includes a person or organization that has obtained, from the author or from an entity that has obtained ownership of all rights under the copyright initially belonging to the author, the contractual right to claim legal title to the copyright in an application for copyright registration. See 37 C.F.R. § 202.3(a)(3).

    As the definition indicates, in the circumstance that the copyright claimant is not the author of the work, the party claiming ownership must have obtained all rights in the work that originally belonged to the author. Further, as case law suggests, a ‘copyright “claimant’ in whose name registration is made “must be either the author of the work or one who obtained ownership of the copyright, not merely one who obtained ownership of certain exclusive rights under the copyright.” Morris v. Business Concepts, Inc., 259 F.3d 65, 72 (2nd Cir.2001); see also Bean v. McDougal Littell, 669 F. Supp. 2d 1031, 1035 (D. Ariz. 2008) (further quoting Morris in that “the copyright ‘claimant’ for purposes of copyright registration is the author of the work for which registration is sought or a person or organization that has obtained ownership of all rights under the copyright initially belonging to the author”).

    We discussed in a previous blog post that publishers, studios, and producers, will often incorporate language into a written agreement by way of assignment or license to obtain ownership in the copyright of a work. However, in some agreements, the assignment or license does not effectively transfer all rights under the copyright from the author to the organization. Consequently, when the publisher, studio, or producer, applies for copyright registration on behalf of the author, it incorrectly marks itself as the copyright claimant, believing that all rights have been transferred, when that simply is not the case.

    What happens if the publisher, studio, or producer, puts down the wrong claimant on the application for copyright registration?

    The fear is that if there is ever a dispute regarding the work (i.e., claim for copyright infringement against a third party), the copyright registration will be held invalid, which could have drastic implications for the copyright holder, including the author as well as the publisher, studio, or producer. In many circumstances, a valid copyright registration, or certificate of registration, is evidence that both the copyright is valid and that the copyright claimant owns the copyright. Courts may find a registration invalid if the copyright claimant willfully misstated or failed to state a fact that, if known, might have caused the Copyright Office to reject the application for copyright registration.

    However, Courts have held that an innocent misstatement or error, absent of fraud, does not invalidate the copyright. In Wales Industrial Inc. v. Hasbro Bradley, Inc., 612 F.Supp. 510, 515 (S.D.N.Y.1985), the Court held that where an exclusive licensee erroneously identified itself on the copyright registration as the ‘copyright claimant,’ that the alleged error didn’t invalidate the registration. Once a Court determines that an error was innocent, it will look to see if the error was immaterial. An error is immaterial if its discovery is not likely to have resulted in the Copyright Office’s rejection of the application for copyright registration. Consequently, in most cases, innocently identifying the wrong copyright claimant on an application for copyright registration will not invalidate the copyright registration or certificate of registration.

    In any case, it is important for the publisher, studio, or producer to make sure that if it intends to transfer all rights in a copyright from an author to itself that it has a written agreement between the author and itself which includes the necessary language to confer all rights in the copyright. Such a written agreement is required as set forth under Section 204 of the Copyright Act to constitute a valid transfer and will allow the publisher, studio, or producer to mark itself as claimant in the application for copyright registration. This will help avoid unnecessary litigation and its associated expenses arising out of the validity of the copyright registration and whether the misstatement of identify to the copyright claimant was fraudulent and material or simply an innocent and immaterial error.

    Attention Photographers: Digitally Watermark Your Photographs or Possibly Lose Thousands of Dollars!

    If you have ever been to an art gallery or museum you have likely noticed that most of the pieces of art, whether a photograph, sculpture, painting, or drawing, bore the signature or other mark of its creator. From Sophilos Me Grafsen’s imprint of his name into a Greek pot in the sixth century BC to Raffaello Sanzio’s artfully placed signature in the painting of “The Mystical Marriage of St. Catherine” around 1499, for thousands of years artists have outwardly expressed ownership in their work. This imprint or signature delivers authenticity and closure by letting the world know that this particular piece of art was created by this specific artist or artists and that this piece has been completed to the satisfaction of its creator(s). Without such a moniker, with the exception of extremely well-known pieces, most individuals in the world would not readily know the name of the artist whom created a particular piece of art.

    A lack of an expressed moniker can create serious issues when an artist decides to commercialize a work and the artist can miss out on extra protection in the U.S. afforded by U.S. copyright law. With the implementation of the Internet and its ability for widespread and rapid dissemination of information, the U.S. Copyright Act of 1976 needed to be amended address the creation of an electronic marketplace. The Digital Millennium Copyright Act (DMCA) is an amendment to the U.S. Copyright Act of 1976 and implements two 1996 treaties of the World Intellectual Property Organization (WIPO).

    The DMCA addresses artist imprints and signatures, among other monikers, as ‘copyright management information,’ “used to ensure the integrity of the electronic marketplace by preventing fraud and misinformation.” H.R.Rep. No. 105-551 (1998). Because of the Internet’s sophisticated level of information technology, it is extremely important for an artist to use some form of a moniker, especially if his or her work is able to easily be digitally transcribed, such as in the form of a digital scan, or digitally reproduced. This indicates to the electronic marketplace that only the artist has the presumption of exclusive rights in his work, especially in reproducing and sharing his or her work for commercial purposes.

    Monikers, however, can be displaced, replaced, cropped, copied, distorted, or removed altogether. Predating the Internet and electronics, including the photocopier, such modification, reproduction, or removal of an artist’s moniker was not necessarily an easy task. Skilled artists would attempt to replicate a piece of art down to the reproduction of an artist’s very signature. Such reproduction led to a lucrative market in art forgery that still exists today, although not to the extent that it once was.

    With present technology, the modification, reproduction, or removal of an artist’s moniker has become an easy task, especially with monikers imbedded in works such as digital photographs. Too often, an artist’s digital moniker, often in the form of a digital watermark, will be cropped entirely out of the work, or even worse, replaced with a moniker of a third party whom had no hand in the creation of the work. Rest assured, however, the DMCA, although sometimes characterized as antiquated in many respects, does address this troublesome affair.

    Section 1202, among other things, of the DMCA makes it illegal for someone to remove any copyright management information from another artist’s photograph as a means to disguise an act of copyright infringement. As addressed in IQ Grp., Ltd. v. Wiesner Pub., LLC, 409 F. Supp. 2d 587, 596 (D.N.J. 2006), Congress, with respect to the DMCA, viewed a digital watermark as an example of copyright management information. Further, the DMCA, under section 1203, provides for statutory damages in the amount of not less than $2,500 or more than $25,000 for each violation of section 1202.

    It is extremely important to note that damages resulting out of a violation of the DMCA’s section 1202 can be in ADDITION to damages provided for in section 504 of the Copyright Act of 1976, which addresses, among other things, copyright infringement generally. Consequently, it is important that as a photographer, you embed a digital watermark, or some type of copyright management information, into your digital photograph, especially before making such photograph available on the Internet. This will not only allow you to potentially recover additional civil damages in the event that a digital watermark is removed or altered, but also will hopefully deter unauthorized reproductions and copyright infringement of your work generally.