commercial use. Given
Flava’s breach of their Vuze license agreement, it
would be inequitablefor this court to enforce an action for infringement when the party alleging the infringement itself exceeds the scope of its copyright license used to monitor the Bittorrent swarms.
This case is about the intersection of internet copyright infringement, pornography, andan economic business model that is a cyber version of a shakedown racket. See
United States v. Nardello
, 393 U.S. 286 (1969). Certain pornography companies, this Plaintiff included, suehundreds of alleged defendants with the goal that a percentage of the defendants
will “settle out”for only “a thousand”
. The case is then dismissed under FRCP Rule 41 before answers are filed.See
Malibu Media, LLC v. John Does 1- 10
(CD CAL 2:12-cv-3623) attached as Exhibit A.Hon. Otis Wright has commented on this peculiar litigation model by stating:
“These lawsuits run a common theme: plaintiff owns a copyright to a
pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain theidentities of these Does; if successful, plaintiff will sent out demand letters to theDoes; because of embarrassment, many Does will send back a nuisance-valuecheck to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars.Rarely do these cases reach the merits.
The federal courts are not cogs in a plaintiff’s copyright
-enforcement businessmodel. The Court will not idly watch what is essentially an extortion scheme, for a casethat plaintiff has no intention of bringing to trial. [. . .] If [plaintiff] desires to vindicateits copyright rights, it must do it the old fashioned way and earn it.
Malibu Media, LLC.v. John Does 1 through 10
, No. 2:12-cv-3623 (CD Cal. 2012), attached as Exhibit A.Plaintiff, Flava Works, Inc., is like all other BitTorrent pornographic companies exceptthat Flava has disclosed that they use monitoring software (VUZE). But a closer inspectionshows that Flava is using VUZE outside the scope of the permitted license. In short, FlavaWorks
“captures” alleged infringers by itself
committing the tort of copyright infringement. As
Case: 1:12-cv-07869 Document #: 29 Filed: 03/28/13 Page 3 of 10 PageID #:403