Malibu Media, LLC v. Doe

381 F.Supp.3d 343

MALIBU MEDIA, LLC, Plaintiff,

v.John DOE subscriber assigned IP Address 71.58.216.197, Defendant

CIVIL ACTION NO. 4:15-CV-2281

United States District Court, M.D. Pennsylvania.

Signed November 8, 2018

Alfred Jordan Rushie, Rushie Law PLLC, Philadelphia, PA, L. Lomnitzer, Pro Hac Vice, The Lomnitzer Law Firm, P.A., Boca Raton, FL, for Plaintiff.

Aaron T. Brooks, Pennsylvania Furnace, PA, for Defendant.

MEMORANDUM

Christopher C. Conner, Chief Judge

Malibu Media, LLC, commenced the above-captioned action against John Doe, asserting one count of copyright infringement pursuant to the United States Copyright Act of 1976, 17 U.S.C. § 101 et seq. Before the court are the parties' cross-motions for summary judgment.

I. Factual Background and Procedural History ¹

Malibu Media, LLC ("Malibu") is a producer and online distributor of adult pornographic videos. (See Doc. 126-2 ¶ 1). The company is jointly owned by Colette Pelissier-Field ("Pelissier-Field") and Brigham Field. (Doc. 7-1 ¶ 2). Malibu offers its works for download through a subscription-based website under the brand name "X-Art." (See generally Doc. 122-8; see also Doc. 7-1 ¶ 4). Malibu is the registered owner of 20 copyrights² concerned in this litigation, which we will sometimes refer to as the "copyrights-in-suit." (Doc. 122-2 ¶¶ 1-4). John Doe does not contest the validity of Malibu's copyright registrations. (See id. ¶¶ 4-5).³

A. Content Partnerships with Tubesites

As part of its advertising strategy, "[a] few years ago," Malibu uploaded samples of its movies along with some full-length versions of its "older productions" to third-party "tubesites" hoping to drive traffic to its own website and to increase subscriptions. (Doc. 122-2 ¶ 11; Doc. 122-4 ¶ 3). "Tubesites" are websites modeled after YouTube.com, with content consisting primarily of user-uploaded videos and an interface allowing user engagement and participation in the form of "comments" and "likes." Some of these tubesites provide an option to download copies of videos posted by other users. (See, e.g., Doc. 122-2 ¶ 39; Docs. 126-12 to -31). Examples of tubesites providing adult pornographic content are Pornhub.com, Redtube.com, Youporn.com, and Xhamster.com. (See Doc. 126-2 ¶¶ 5-6; Doc. 126-9).

Many of these tubesites offer "content partner" programs. (See, e.g., Doc. 126-9; see also Doc. 122-2 ¶ 12). Malibu was a content partner with several tubesites, including Pornhub, Redtube, Youporn, and Xhamster.⁴ (See Doc. 126-9; see also Doc. 122-2 ¶ 12). The parties dispute what it means to be a "content partner" with a tubesite. Malibu maintains that, through the content partnership, it was able to "maintain its copyrights while directing traffic to its subscription-based website." (Doc. 122-2 ¶ 12). John Doe points to the terms of use for several of the tubesites carrying Malibu's content which warn that, although user-uploaders retain all ownership rights for uploaded content, they also grant certain licenses to both the tubesite and the tubesite's users. (See Doc. 126-2 ¶ 4; Doc. 126-60).

Malibu does not recall and has not retained records of which full-length videos it uploaded to tubesites as part of the content partner programs. (Doc. 126-2 ¶¶ 4, 8; Doc. 126-33 at 14-15). All of the copyrighted videos at issue in this litigation were available for download on various tubesites. (Doc. 126-2 ¶ 11; see Docs. 126-12 to -31). Malibu "denies that it has posted all of" the copyrights-in-suit to tubesites, but acknowledges that it may have posted some of them "for promotional reasons under the expectation that the videos could not be downloaded and distributed by the website[']s viewers." (Doc. 126-62 at 10-11). Malibu does not deny that Pelissier-Field left a comment on one of the videos at issue on the Youporn tubesite under the handle "Colette X-Art." (Doc. 126-2 ¶ 9; Doc. 131-1 ¶ 9; see Doc. 126-17 at 5). Malibu did not itself advertise its works for free to download or distribute on either its own website or on third-party tubesites. (Doc. 122-2 ¶ 13).

B. X-Cash Agents

Malibu also promotes its content through use of "X-Cash agents."⁵ These agents sign up as "affiliates" of Malibu on X-Cash.com. (See Doc. 126-2 ¶ 14; Doc. 126-34 at 2). The agents are then provided access to certain of Malibu's content for sharing on their own websites with advertisements for and links redirecting visitors to X-Art.com. (Doc. 126-2 ¶ 14; Doc. 126-34 at 2). Malibu pays the agents 50 percent "of any sales directly from the billers." (Doc. 126-34 at 2). It is unclear from the record whether Malibu made any of the copyrights-in-suit available to these agents via X-Cash.com, but John Doe has adduced dozens of screenshots from tubesites and torrent sites suggesting that X-Cash agents may have uploaded various of Malibu's videos, including some of the copyrights-in-suit, to both tubesites and BitTorrent websites.⁶ (See Docs. 126-50 to -59). Malibu does not directly respond to this evidence, but broadly denies that it ever uploaded its own work to the BitTorrent network or "authorized anyone else to distribute its works through the BitTorrent protocol." (Doc. 131-1 ¶ 15).

C. John Doe's Downloads

John Doe testified that he discovered Malibu's videos on the BitTorrent network while searching for a shareware computer design program of a similar name. (See Doc. 122-7, John Doe Dep. 11:15-12:19, 13:16-14:18, 23:6-12 ("Doe Dep.")). He explained that while searching for the design program, the torrent search engine displayed results for X-Art videos. (Id. ) He claimed that he then performed a Google search for the term "X-Art" and discovered torrent websites and tubesites offering free downloads of many of X-Art's videos. (Id. ) John Doe further claimed that he reviewed the tubesites' terms of service and was left with the impression that Malibu and X-Art had given broad permission to others to distribute and use their videos for free. (Id. at 16:4-17:22).

John Doe admits that he downloaded 19 of the 20 copyrights-in-suit using the BitTorrent protocol. (Doc. 140-1 ¶ 6; see Doc. 33 ¶ 23; Doc. 126 at 16). He denies downloading the video "In for the Night." (Doc. 33 ¶ 23; Doe Dep. 15:15-16:3). John Doe testified that "[i]t was just easier to [download them] via BitTorrent than it is from the distribution websites." (Doe Dep. 40:2-7). John Doe never communicated or had a relationship with Malibu before he downloaded its works via BitTorrent. (Doc. 122-2 ¶ 7).

D. Procedural History

On November 25, 2015, Malibu commenced this action against John Doe, asserting a claim for violation of the United States Copyright Act, 17 U.S.C. § 101 et seq. , subsequently filing an amended complaint on April 14, 2016. Therein, Malibu contends that it is the registered owner of the copyrights-in-suit and that John Doe downloaded, copied, and redistributed the copyrighted works without authorization. The court has permitted John Doe to proceed by pseudonym for purposes of the pretrial phases of this litigation. Malibu Media, LLC v. Doe, No. 4:15-CV-2281, 2016 WL 524248, at *3 (M.D. Pa. Feb. 10, 2016).

John Doe's responsive pleading rejects the bulk of Malibu's allegations and raises ten affirmative defenses. John Doe also lodged a number of counterclaims against Malibu, its attorney, and its principals, including Pelissier-Field, premised on his belief that Malibu knowingly defrauded John Doe and the public by holding itself out as a provider of free adult video content only to later bring infringement actions against those downloading that content. We dismissed all counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(6). We determined first that each counterclaim was barred by Noerr - Pennington immunity, which shields those who petition the government for relief unless they know their lawsuit to be "objectively baseless." Malibu Media, 238 F.Supp.3d at 643-45 (citing United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) ; E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) ). We further determined, assuming arguendo that immunity did not apply, that John Doe had failed to offer any allegations to support his contention that Malibu "intended ... to entrap" him and others for purposes of common law fraud; that Malibu engaged in criminal extortion, fraud, or deception under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1963 et seq. ; or that Malibu deceived him into purchasing or leasing goods in violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 PA. STAT. & CONS. STAT. ANN . §§ 201-1 to -9.3. See Malibu Media, 238 F.Supp.3d at 646-48.

Following a period of discovery and a number of discovery disputes, the parties filed the instant cross-motions for summary judgment. The motions are fully briefed and ripe for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and for which a jury trial would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of proof tasks the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court is to view the evidence "in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor." Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S.Ct. 1348, 89...