Home > News > Judge Might Allow Piracy Defendant to Comb Through 2257 Records • Bookmark   • Newsletters   • Register Search Options

NEWS STORY

Judge Might Allow Piracy Defendant to Comb Through 2257 Records

Judge Might Allow Piracy Defendant to Comb Through 2257 Records
Get XBIZ News
Jun 10, 2014 6:00 PM PDT    Text size: 

CHICAGO — A federal judge in Chicago yesterday, making a preliminary ruling in a porn piracy case, said that a defendant may potentially be allowed to comb through X-Art.com's 2257 records in discovery in support of an "unclean hands" defense.

The unnamed defendant in Malibu Media vs. John Doe, subscriber assigned IP address 24.14.139.173, asked the court to dismiss the copyright infringement case on grounds that X-Art's parent company, Malibu Media, had unclean hands because it allegedly keeps "incomplete, deficient or fabricate records of the performers in its works."

Courts won't adjudicate a case if a judgment for a plaintiff would encourage criminal or unlawful activity, including violation of the federal record-keeping act, 18 U.S.C. § 2257, which requires anyone who produces sexually explicit content to create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

"Doe contends that [i]f any of the sexually explicit films featuring young-looking girls at issue here ... were feloniously produced in violation of the strict record-keeping requirements of 18 U.S.C. § 2257 ... then the court should not enforce copyright monopolies for such films,' " U.S. District Judge Matthew Kennelly said.

"The court is not prepared to say that federal copyright law would permit one who has produced child pornography — which cannot be legally produced or distributed anywhere in the U.S. — or who has failed to comply with federally mandated requirements aimed to deter production of child pornography to enforce a copyright relating to such material."

As a result, Kennelly declined to strike Doe's unclean hands defense in the preliminary ruling, but he will require Doe to establish that X-Art has violated the law with respect to one or more of the particular films that are the subject of its copyright infringement claims.

Kennelly also said in the ruling that the court is unprepared to rule out the possibility that Doe can establish an "implied license defense" based on "seeding" by X-Art onto BitTorrent of the particular films upon which its claim against Doe is based.

Doe contended as a defense that the alleged "seeded" content invited others to download it. He alleges that this amounted to an implied license, precluding a claim of infringement.

Attorney Morgan Pietz, who represents Doe, said that although some other affirmative defenses were stricken in the case, the bottom line is that the decision represented "a pretty significant win" for end users involved in John Doe porn litigation.

"[X-Art] has probably created a pretty troubling precedent for the adult industry with this new decision out of the Northern District of Illinois," Pietz told XBIZ. "The broader implication is that when an adult company goes into court to sue for copyright infringement, it had better be sure its Section 2257 house is in order." 

Pietz said that aside from explaining to the court why a Section 2257 defense was different from an obscenity defense, one of the other arguments he made was that X-Art invited scrutiny by filing more than 2,000 copyright infringement lawsuits in three years time.

Kennelly set a telephone status hearing between counsel for next week.

More ways to get XBIZ News:  RSS Feeds  |  E-Newsletters  |  Desktop Widget  |  Mobile
Looking for porn star news and behind-the-scene videos? Check out XFANZ.com !

LEGAL PERSPECTIVES

Randazza: Trump Victory, Big Prop 60 Win

On Tuesday afternoon, I boarded a transatlantic flight. Given all of the negativity in the 2016 presidential race, I was delighted that I would be absent for the results. I found both Donald Trump and... More »

Dissecting an $11.9M Affiliate Marketing Judgment

The Federal Trade Commission scored another major win in early October when the 2nd U.S. Circuit Court of Appeals upheld a lower court ruling, requiring LeadClick Media LLC to pay an $11.9 million award. The... More »

Legal Protection for Amateur Shoots

Any adult industry professional who creates video content with actual first-time amateurs will come to an early knowledge that later performer regret is commonplace. Recognized performers who regularly... More »
XBIZ NEWSLETTERS
Stay informed of the latest industry developments. Get XBIZ newsletters delivered to your inbox. Subscribe today!
Enter email address:

* To manage existing subscriptions click here.






POPULAR PRODUCTS & SERVICES
Submit your press release to
multiple news outlets with 1 click.
Subscribe to RSS news feeds or
add free content to your website.
Access XBIZ news and articles
with your mobile device.
Subscribe to XBIZ Premiere magazine, the industry's leading adult retail trade publications, delivering the most timely and comprehensive business news and information to producers and retailers of adult products.

UPCOMING EVENTS

Everything To Do With Sex Show

Jan 20 - Jan 22
Montréal, Québec

Everything To Do With Sex Show

Jan 27 - Jan 29
Halifax, Nova Scotia

The European Summit

Mar 04 - Mar 07
Barcelona-Sitges, Spain

The TEA Show

Mar 05 - Mar 06
Hollywood, CA
Everyday thousands of business professionals browse XBIZ's industry directory for quality products and services. Not listed yet? Your company could be losing potential new business. Submit your company today!
Use XBIZ RSS feeds to stay informed of the latest industry developments or as a content syndication tool for your website!