Judge Might Allow Piracy Defendant to Comb Through 2257 Records

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.

View memorandum opinion and order

Related:  

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

Aylo Challenges EU's DSA Mandate to Reveal Legal Names of Advertisers, Including Performers

Aylo has filed an appeal with the Court of Justice of the European Union (CJEU) challenging the EU's Digital Services Act mandate to disclose the legal names of advertisers, including performers, in a publicly accessible database.

Irish Senate Endorses Age Verification Proposal Based on Anti-Porn US State Laws

The Senate of the Republic of Ireland — known by its Gaelic name Seanad Éireann — has endorsed an age verification bill introduced by a senator who said he was inspired by the U.S. state laws promoted by religious conservative anti-porn crusaders.

Meta Admits to Updating Database of Banned Images Based on 'Media Reports'

Meta has told its Oversight Board that the company relies on “media reports” when deciding to add images to its permanent database of banned content for its platforms, including Instagram and Facebook.

MintStars Launches Tipping Solution MintPay

MintStars has unveiled payment processing solution MintPay, aiming to make tipping creators easier for fans.

Popular Pakistani Actor and Director Yasir Hussain Proposes Legalizing Porn

Prominent Pakistani actor, director and TV personality Yasir Hussain has sparked debate in the majority-Muslim country by suggesting that pornography should be legalized there and that society should own up to so many Pakistanis already being habitual consumers.

AEBN Publishes Popular Searches for May and June

AEBN has released the top search terms for the months of May and June from its straight and gay theaters in all 50 states and the District of Columbia.

Senior Labour MP Launches Attack on All Porn, Sex Work

A senior Labour MP on Tuesday launched an attack against adult websites, saying they are “characterized by lawlessness,” and called for further criminalization of all sex work.

Conservative Taxpayers Group Criticizes KOSA's Overreach

Conservative newspaper The Washington Times on Tuesday published an opinion piece by the executive director of the Taxpayers Protection Alliance, criticizing the Kids Online Safety Act (KOSA) on constitutional grounds.

Los Angeles-Area Man Pleads Guilty to Wire Fraud Over Bogus Adult Sites

A Los Angeles-area man pleaded guilty on Monday to defrauding investors out of more than $1 million “by making false promises that they would receive an ownership interest in several adult entertainment webcam websites and then using their money on personal expenses, including luxury items,” according to the Department of Justice.

More Conservative Organizations Distance Themselves From Anti-Porn Project 2025

A growing list of conservative groups that previously endorsed Project 2025 — which calls for the criminalization of adult content production and distribution — have reportedly distanced themselves from the self-described “presidential transition” blueprint, following Donald Trump’s repeated claims that he disagrees with an unspecified number of its positions.

Show More