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.

    Copyright Law v. Trademark Law: Commonly Mixed Up — Basic Difference between Copyrights and Trademarks in the United States

    Too often a journalist for a well-known publication will publish an article that confuses copyright protection with trademark protection or copyright infringement with trademark infringement. This misnomer and incorrect application of law oftentimes confuses the general public and inaccurately communicates an otherwise newsworthy story.
    • Copyright laws generally protect the work of an author in his or her original, fixed and tangible expression of an idea as opposed to simply an idea itself.
    • Trademark laws generally protect the identity of the origin of the party providing specific goods or services to the marketplace.
    For example, a band with a unique name composes an original song. In this example, generally, the original song may be protected under copyright laws as the song is a fixed expression of an idea that the band reduced down to writing, while the unique name of the band may be protected under trademark or unfair competition laws.
    • Copyright infringement attempts to seek relief for an unauthorized violation of the exclusive rights of a copyright holder in commercializing their work.
    • Trademark infringement attempts to seek relief for the unauthorized use of a trademark holder’s rights in a unique name, used by the trademark holder, in selling specific goods or services to the marketplace.
    For example, a third party, without authorization, copies a band’s exact song and sells it on CDs over the internet. Further, the same party who is selling unauthorized copies of the band’s song is doing so under the same name as the band despite having no authorization to use the name. In this example, the copyright holder, which may be the band or record label, may seek relief against the unauthorized party selling the CDs under a claim of copyright infringement. Further, the trademark holder of the band name, which is usually the band itself, or the record label on behalf of the band, may seek relief against the unauthorized party using the band’s name to sell the CDs under a claim of trademark infringement or unfair competition. There are additional criteria that oftentimes need to be met to have a valid copyright or trademark as well as specific requisites which must be met to bring a claim for copyright or trademark infringement. It is important to consult a copyright lawyer or trademark lawyer to assist you in determining whether you have a valid copyright or trademark and whether your rights in either have been violated.

    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.

    Artists, Authors, Musicians: Be Wary of a Copyright Assignment or an Exclusive Copyright License

    It’s an important day when an artist signs his first artist agreement, when an author executes her first publishing contract, or when a band strikes their first record deal. It’s even more important that the creative parties signing these agreements understand what rights they may be giving away. Too often creative parties realize after it’s too late that they have effectively transferred almost all rights in their work and even in future works.

    Under Section 204 of the Copyright Act, a transfer of copyright ownership, other than by operation of law (including but not limited to corporate mergers, bankruptcy, foreclosure, court order, and intestate succession), is not valid unless an instrument of conveyance, or a note or memorandum of the transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. 17 U.S.C. § 204. Consequently, a publisher, studio, or producer, will often incorporate language into a contract that transfers all intellectual property rights and copyright rights in a work away from the creative party. Sometimes, the non-creative party will do this in the form of an exclusive license, which many times has the same effect of a copyright assignment.

    Sometimes, agreements that provide for the transfer of or exclusive rights to such rights also include language that expressly states that all future works created by the creative party are considered a Work-Made-For-Hire and that if necessary, the creative party agrees to sign additional documents assigning or exclusively licensing their rights in the copyright of the work. A Work-Made-For-Hire means essentially as it sounds, in that the creative party is an employee of an organization and it is his or her job to create the specific type of work being commercialized or that the creative party has been specifically commissioned and hired to complete a specific piece of work, but not in an employer-employee relationship, but rather in an independent contractor role. In either case, the non-creative party is seeking and asserting ownership or exclusivity in all rights in the copyright for all future works before they are even created.

    It is highly recommended that a creative party, whether author or singer, retain a skilled lawyer to review any contract that poses a threat to the ownership or rights in the copyright of a specific work or future works. It is not always a bad thing that these rights are transferred or exclusively licensed, but such rights should be understood by the creative party in the context of the overall agreement in order to provide the creative party with an exit strategy in case the relationship between the parties doesn’t work out. An artist, author, or singer, often spends his or her entire life trying to ‘catch a break’ or ‘make it big’ or ‘break out’, why not spend the time and minimal expense to protect what took in some cases a lifetime to achieve?