back to article Copyright troll wants to ban 'copyright troll' from its copyright troll lawsuit

Adult content company Malibu Media has asked a court to ban the terms "copyright troll" and "pornographer" in an upcoming trial that revolves around the fact that the company repeatedly demands thousands of dollars from people that have downloaded its pornographic content. Allowing the terms would be "unfairly prejudicial and …

  1. Henry Wertz 1 Gold badge

    Well they're at it

    Well they're at it, how about the defendants get the use of terms like "piracy" barred from use in cases instead of unauthorized copying.

    1. Steve Knox

      Re: Well they're at it

      Nope. By Malibu Media's logic, "unauthorized copying" would be prejudicial. If they refer to the defendant by any term other than "defendant" they have voluntarily surrendered their own argument.

    2. dan1980

      Re: Well they're at it

      On the surface of it, they have a point - terms like "copyright troll" have no useful legal meaning. Either the actions are problematic or they are not.

      But, as you rightly point out, the door swings both ways and terms like "piracy" and "theft" are frequently used by these content companies. Indeed, they have been so successfully pushing this language that they have politicians spouting the same loaded terms.

      After years of doing this, getting our media and law-makers using these terms as though they are accurate and self-evident, they now find themselves on the other end.

      In justifying their lawsuits and petitions to governments, these companies use those evocative terms, calling the offence "theft" and the action "piracy". That strong language is deliberately used to prejudice the judges (and law makers) into disfavouring the defendants - if you manage to equate unauthorised viewing of copyright content with "theft" then you have made part of the case already before even discussing the ins-and-outs of any specific instance.

      Terming some company a "copyright troll" is just the same and is problematic for the same reason. It's just amusing that they are getting a taste of their own medicine.

    3. TitterYeNot
      Coat

      Re: Well they're at it

      "Well they're at it, how about the defendants get the use of terms like "piracy" barred from use in cases instead of unauthorized copying."

      In order to avoid unnecessary prejudice in the current legal procedings, prosecuting lawyers have asked the court to rule that the phrase 'scummy robbing lawyer wankers' should be banned, and replaced by 'top floating wealth redistributing purveyors of legalistic wisdom with onanistic predispositions'...

    4. Joey M0usepad Silver badge

      Re: Well they're at it

      surely the ambulance chasers have already had this discussion? , should go with same ruling

  2. Camilla Smythe

    Never Heard of Them.

    Obviously I need to hone my pron downloading skills a little/lot bit more in order to be captured.

    Perhaps someone else can advise if they produce any stuff over and above what is generally available elsewhere that is worth having a frig/wank over.

    1. Anonymous Coward
      Anonymous Coward

      Re: Never Heard of Them.

      I would assume downloading isn't something they have a problem with, it is uploading what you downloaded from them that causes them to lawyer up.

      1. ratfox

        Re: Never Heard of Them.

        I would assume downloading isn't something they have a problem with, it is uploading what you downloaded from them that causes them to lawyer up.

        That's not the way I'm reading it. It looks to me like they're attacking people who download their stuff from third-party websites. Because technically, it is illegal to simply download.

        You'll remember that the music industry also used to sue random Joes for like $15'000 for every single song they downloaded, as an attempt to scare the public away from randomly downloading from the Internet. The music industry has stopped with the aggressive scare tactics, not because downloading has become legal, but because of the backlash in public opinion.

        1. Identity
          Devil

          Re: Never Heard of Them.

          Actually, it seems they are suing people regardless of whether they have partaken in any way.

    2. Rich 11

      Re: Never Heard of Them.

      Perhaps someone else can advise if they produce any stuff over and above what is generally available elsewhere that is worth having a frig/wank over.

      A colleague has advised me that X-Art publishes noticeably higher quality material than the run-of-the-mill filth, with decent production values and content which could legitimately be described as erotic in the normal sense of the word.

      You might not want to take his word for it though. He may have shares in the company.

  3. veti Silver badge

    "Referring to..."

    There's a difference between "referring to" and "describing". This motion wouldn't prevent the words from being introduced in the courtroom, provided they're not used as a reference for the plaintiff.

    So, "Copyright troll's motion is bollocks" - not allowed.

    But "Plaintiff is a copyright troll" - fair comment, allowed.

    Makes me wonder what, precisely, goes on in these courtrooms...

    1. John Geek
      Trollface

      Re: "Referring to..."

      what goes on? legal wankery

  4. Thorne

    More and more reasons these days to use a VPN

  5. Graham Marsden
    Facepalm

    "Please stop them using these words..."

    Paging Barbra Streisand...

  6. Mark 85

    If it quacks like a duck

    looks like a duck and walks like a duck...it's duck. If it makes lots of threats and files lots of lawsuits over alleged copyright infringement, it's a copyright troll.

    Here all along, I thought porn was a big moneymaker.. I guess it's lawsuits and/or threats that build the bottom line.

    1. Chairo
      Pint

      Re: If it quacks like a duck

      Here all along, I thought porn was a big moneymaker..

      It's a question of supply and demand. Nowadays the supply in the internet is nearly unlimited and the demand has peaked out. Means there is less and less money to make.

      So they built up a nice little side business. I remember last year or so I read about a similar case in Germany where a porn producer sued in pretty much the same fashion. Turned out they even uploaded their own "productions" to trackers and seeded them. (That's how they got the IP numbers). Did anyone check where Malibu Media got their IP numbers from? Do they perhaps actively seed their own "material"?

      Anyway - just wait until TPP and TTIP are being introduced. Then all the American IP trolls will be let loose on the rest of the word. We are all doomed - but I'm repeating myself.

      It's Friday, let's have a beer!

      1. Fred Flintstone Gold badge

        Re: If it quacks like a duck

        the demand has peaked out

        I saw what you did there :)

    2. Anonymous Coward
      Anonymous Coward

      Re: If it quacks like a duck

      it's a mallard.

      There are plenty of ducks out there, but only a mallard quacks.

      1. Kubla Cant

        Re: If it quacks like a duck

        There are plenty of ducks out there, but only a mallard quacks.

        Are you sure? The author of this apparently well-informed article about Aylesbury ducks evidently thinks they quack.

  7. Rol

    If it pleases the court

    "Could you please explain to the court how you managed to identify the defendant as the downloader of Jiggy Jiggy"

    "Well, we seeded Jiggy Jiggy and collated a list of all the ip addresses that downloaded the torrent. We then approached the ISP's who own these ip addresses and demanded the details of their clients who these addresses pertained to."

    "Mmm. Yes, So you, yourselves made Jiggy Jiggy available to download?"

    "Err, Yes, we did"

    "And you don't see any conflict in actually being the ones encouraging, by your admission, illegal activity?"

    "Not at all, it is our property and we'll do as we like"

    "Ok, well lets move onto my next point. That of identifying the defendant by name"

    "Yes, we have his details from his isp"

    "You do, do you? Let me give you a rather apt example of why you're wrong. You see, I have recently been informed that you have been issued with sixteen speeding tickets in two different states and while we're speaking you are being pursued down the highway by interstate police"

    "Clearly, you are wrong"

    "No, your car registration was cloned and fitted to another vehicle in the next state, while your own car was later stolen and is now careering mindlessly down the road"

    "Is that true?"

    "Sadly. No. It is an allegory of how an ip address can be cloned or otherwise used without the true owners consent and therefore fails to link my client with your smutty business. Your honour, my client has nothing to answer for, as the prosecution has failed to identify, beyond all doubt, that he was the one committing the crime"

    "Case dismissed."

    1. dotdavid

      Re: If it pleases the court

      I think a better car analogy would be a rental car used to commit a crime, and the police nabbing the current driver despite the crime having happened several months ago. But the rest; spot on.

  8. silent_count

    To be fair

    The term "pornographer" and "copyright troll" are prejudicial and inaccurate descriptions of the plaintiff. For the sake of simplicity they should henceforth be referred to as "extortionists" and there would be no confusion.

  9. Voland's right hand Silver badge

    It is not game over. Unfortunately

    it's game over for Malibu Media's one-company money-making anti-piracy campaign.

    Nope, it is not - unless they get a consent decree and a decision to refund a significant majority of settlements to date. That however is not happening because the suit does not have a class action status. So at most they are getting a "cost of doing business" fine.

  10. Mystic Megabyte
    WTF?

    ??

    How would I know that "California Surf Fever" was copyrighted until after having downloaded it? Upon discovering this I would of course immediately delete it.

  11. Pascal Monett Silver badge

    Go Harrison !

    Get the dirty scum for everything you can.

    Set the precedent. People need to know they can fight back.

  12. TonyJ

    Remember ACS Law in the UK

    They were doing pretty much the same thing, if I recall although they never actually brought a case to court and that's what ultimately cost them their business model.

    I even got a letter from them once. Hilariously, it complained I'd downloaded something I hadn't. I threw it, and the other one they later sent straight into the bin.

  13. Anonymous Coward
    Anonymous Coward

    This is an old scam.

    These sort of shakedowns happened even before the Internet.

    I recall one scam where a set of enterprising lads offered an article for sale in "one of those" mags at half the usual price. Naturally, they got loads of orders but they didn't send any product. Instead, they waited a week, then sent a letter back with a statement that the product was so popular they ran out of stock, and they enclosed a refund check. From what I heard from the copper who told me, they cleared quite a lot of money and there was nothing the police could do - they were only caught later because they got greedy on another scam.

    You see, the refund cheque was issued in the name of the "huge rubber dildo company inc" (which they had genuinely been able to set up), so they were banking, if you like, on the embarrassment factor and yes, that worked.

    No Internet involved..

    1. sjaddy

      Re: This is an old scam.

      So, did Lock Stock and 2 Smoking Barrels steal the story for their plot or did the scam happen after someone saw Lock Stock?

      1. Anonymous Coward
        Anonymous Coward

        Re: This is an old scam.

        So, did Lock Stock and 2 Smoking Barrels steal the story for their plot or did the scam happen after someone saw Lock Stock?

        It is quite a common concept to use someone's, err, proclivities against them so I think Lock Stock writers had quite a few scenarios to choose from.

        The 1990s New Labour sleaze campaign against the Tories was the same thing : make sure you control the investigation so you can remove the fools in your own party from sight and presto, plenty publicity of the most salacious kind. I guess that's where they learned the value of privacy invasions which gave rise to the whole surveillance and CCTV era. Here too it was simple detective work which provided the data, not any Internet hack.

        The Internet has not enabled that many new types of fraud to emerge, only that they can now be committed from a distance from countries that give you no hope of catching the culprits because the local economies may actually depend on them..

  14. Anonymous Coward
    Anonymous Coward

    I read that brief..

    .. and I must say it's always rather entertaining to see someone returning a brick at a higher velocity than at which it was received.

    The reply is legal jiu jitsi: it uses their own arguments against them. Love it.

    Very much hope he wins this one.

  15. caffeine addict

    Why aren't we creating a list of new terms for them to be referred as? It's like a (sexy, oh so sexy) game of whack-a-mole.

    I propose "smut pedlars" and "grumble-mongers"

  16. Identity
    Joke

    Slightly related story

    Don't know if this is true or not...

    Australian Police have been unable to recommend a prosecution for the following scam:

    A company takes out a newspaper advertisement claiming to be able to supply imported hard core pornographic videos. As their prices seem reasonable, people place orders and make payments via check.

    After several weeks, the company writes back explaining that under the present law they are unable to supply the materials and do not wish to be prosecuted. So they return their customers' money in the form of a company check.

    However, due to the name of the company, few people will present these checks to their banks.

    The name of the company: "The Anal Sex and Fetish Perversion Company"

    1. Anonymous Coward
      Anonymous Coward

      Re: Slightly related story

      would have been easier to have posted the link you copied and pasted from!

      http://www.snopes.com/risque/porn/porntape.asp?print=y

  17. BleedinObvious

    Malibu denies existence of Wifi hacking too, according to TF article

    Article misses that Malibu have also asked court to ingore defense's expert from explaining Wi-Fi Hacking - because you know, pesky reality gets in the way of their prosecution argument.

    As for piracy and theft, US Supreme have already banned their use in Hotfile's ongoing case, so there might be a precedent to argue there.

    1. Trigonoceps occipitalis

      Re: Malibu denies existence of Wifi hacking too, according to TF article

      “Many a good argument is ruined by some fool who knows what he is talking about.”

      Marshall McLuhan

  18. Fatman
    Joke

    Malibu Media

    I wonder, did their principals attend the same law school as those reputable guardians of private profits known as Prenda Law???? (for those who haven't heard of Prenda Law: http://www.theregister.co.uk/2015/05/06/smackdown_smutseeding_copyright_troll_blasted_from_the_bench_again/ )

    It smells like they may have shared the same classroom.

  19. Anon Adderlan

    But if they're not purveyors of fine pornography, how can they fine people for pirating the pornography they don't purvey?

    Malibu Media has no legal standing to sue for pirating material they do not have any rights to. And if they are suing over titles like "Anal Armageddon II, The Second Cumming", then I think it's fair to call them pornographers.

    Oh, and if they were seeding their own work on Torrent, it means they intended for and approved of others distributing their work for free. You can't sue over work you made publicly available yourself, and putting your work on Torrent carries with it certain (legally enforceable) expectations.

  20. hellwig

    Vexatious litigation

    Can't they stop this abuse. One third of ALL copyright cases? Must have been quite a fishing expedition undertaken to identify all these supposed pirates.

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