X-Art Piracy Defendant Asks Court to Reconsider Ruling Over 57 Videos

Rhett Pardon

BLOOMFIELD HILLS, Mich. — A defendant in a porn piracy suit asked a federal judge today to reconsider a summary judgment decision that found him liable for copyright infringement over 57 X-Art.com movies.

Don Bui's attorney told a federal court in Michigan today that it shouldn't have relied on arguments by X-Art's parent company, Malibu Media, that created a "palpable defect" in the disposition of the case.

"It is an error of fact and law to hold that one can be guilty of creating unauthorized copies, based on the installation and use of BitTorrent technology," said James Mitchell, Bui's attorney. "BitTorrent technology has non-infringing uses."

Bui's lawyer, asserting that X-Art created a "honey pot" to snare users, said: "The only way that copies of those movies were made on his computer is through the instructions sent to his computer by KickAss Torrent. KickAss Torrent could have sent instructions to make authorized copies of copyrighted movies."

Bui, who today asked for a reversal of the summary judgment order , attempted to shift blame to KickAss Torrent earlier in the case; however, U.S. District Judge Robert Jonker disagreed with his contention and found him liable.

"Defendant has some quarrels with the details of how BitTorrent works, but nothing that the court sees as a fundamental or material issue of fact," Jonker wrote in an opinion handed down Monday. "Even as defendant describes the facts, using BitTorrent technology, he ultimately winds up with 57 unauthorized copies of plaintiff’s works — copies that did not exist until defendant himself engaged the technology to create new and unauthorized copies with a swarm of other users.

Jonker held that although  the process is not identical to the peer-to-peer file sharing program in Grokster, it is, however, "functionally indistinguishable" from the perspective of both the copyright holder and the consumer of the infringed work.

"In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work," Jonker ruled. "It makes no difference from a copyright perspective whether the infringing copy is created in a single wholesale file transfer using a peer-to-peer protocol or in a swarm of fragmented transfers that are eventually reassembled into the new infringing copy."

Bui's attorney in an earlier filing said that X-Art's tactics "trap unwary consumers like Don Bui," forcing them "into paying a large sum of money to avoid the rigors and exposure of a lawsuit."

"X-Art seeks to take advantage of the generous statutory damage allowance imposed by the copyright laws, which was intended to punish those who were reproducing and distributing hundreds of thousands of pirated works," Mitchell said. "These statutory damage provisions were not originally intended to impose damages of $750 or more against a poor sap who downloads a $20 movie.

"The advent of the computer age, however, allows copyright trolls to harass into bankruptcy individuals, many of whom like Don Bui are doing nothing more than was done by a music store customer who unwittingly purchased a pirated CD."

Movies alleged to be infringed in the complaint include "Silvie Eufrat Strip Poker," "Anneli Leila Menage a Trois," "Pretty Back Door Baby," "Warm Inside" and 53 other X-Art movies.

Bui's attorney described his Vietnamese client as the owner of a nail salon, Southside Nails, who became a U.S. citizen. He "speaks basic but imperfect English," and said he had no idea how BitTorrent works.

The software was loaded onto his PC at the by a friend who recommended he check out the Kickass Torrent website.

Jonker said damages in the case "remain in dispute and will be resolved by trial if necessary."

X-Art asked in an amended complaint for $150,000 per alleged infringed work for a total of $8.55 million, as well as attorneys fees.

If the case goes to trial, it would be only the second to reach that stage. Only one other case waged by X-Art's parent  has gone to trial. That case ended in a $113,000 judgment against the defendant who didn't settle.

To date, X-Art's parent company, Malibu Media, has filed more than 2,500 infringement cases in the past two years.

View today's motion