A Pennsylvania judge has decided to call the bluff of pornography publisher Malibu Media, which has filed lawsuits against hundreds of alleged copyright infringers around the country. A trial will go forward against five defendants in the Eastern District of Pennsylvania, giving everyone a chance to see if the plaintiff's accusations stand up in court.

For several years, pornography producers have pursued a controversial strategy: file lawsuits against a large number of BitTorrent users identified only by IP address, subpoena ISPs for their contact information, and then try to extract quick settlements from the defendants before their cases reach trial.

Critics charge that the plaintiffs in these cases have no intention of actually pursuing the lawsuits in court. Instead, they allegedly seek as many settlements as possible without regard for whether the targets are guilty or innocent. This summer, a California judge referred to Malibu's lawsuits in that state as "essentially an extortion scheme."

Pennsylvania federal Judge Michael Baylson shares others' skepticism about Malibu's tactics. "While Plaintiff’s strategy may sound rational on a superficial level, the joinder of multiple John Doe defendants could very well lead to litigation abuses," he wrote in an order last week. "The purpose of the joinder rules is to promote efficiency, not to use federal district courts as small claims collection agencies, by putting economic pressure on individuals who do not have substantive liability."

And Judge Baylson has come up with a clever way to put Malibu's arguments to the test. Out of the dozens of John Does sued by Malibu in Eastern Pennsylvania, five have filed objections to Malibu's subpoenas seeking their contact information. One of them filed a declaration specifically denying he had been trading files on BitTorrent. Another raised a number of legal objections to the subpoenas.

Judge Baylson has decided to move forward with a "bellwether trial" against these five defendants to determine how credible Malibu Media's accusations actually are. If Malibu can prove that the five Does really did infringe its copyrights, the judge is likely to let the lawsuits proceed against the other defendants. If, on the other hand, Malibu's evidence proves flimsy, the judge will view the lawsuits against the other defendants with skepticism.

Copyright trolls often drop their lawsuits when faced with defendants with the resources and inclination to fight back. But Judge Baylson strongly hinted that Malibu shouldn't try to back out this time.

"The Court assumes that Plaintiff will welcome this opportunity to prove its claims promptly," Judge Baylson wrote in last week's order. But, he warned, "if Plaintiff decides instead to continue to 'pick off' individual John Does, for confidential settlements, the Court may draw an inference that Plaintiff is not serious about proving its claims, or is unable to do so."

The judge acknowledges that singling out the five objecting Does to defend their lawsuits first is unfair to them. But he signals his intention to minimize the resulting financial burden.

"The Court assumes the defendants and their counsel will enter into a joint defense agreement to share work and expenses, and perhaps, if necessary, solicit others with interest in the outcome of these cases, for financial support," he writes. Moreover, he suggests that if the defendants win their cases, they will be eligible to recover their legal costs from Malibu.

Judge Baylson also ruled that the anonymity of the defendants would remain protected while the trial was being conducted.