Porn studio Malibu Media files more copyright lawsuits than anyone else in the US since the fall of Prenda Law; hundreds of suits against "John Doe" defendants have been filed in just the last few months. Nearly all of those cases settle before the case is decided on the merits.

However, in a rare development yesterday, a Malibu lawsuit proceeded to a judgment—and it was a slam dunk for the porn studio. In a terse five-page order (PDF), US District Judge Robert Jonker tore apart defendant Don Bui's arguments that using BitTorrent and the site Kickass Torrents to get porn files didn't violate Malibu's copyright.

In the case, the defendant admitted he had 57 unauthorized copies of Malibu Media movies on his hard drive and had used BitTorrent technology to get them. Bui tried to shift the blame to the Kickass Torrents website, but it didn't work. He also tried to distinguish the technology he used from earlier technologies found to violate copyright laws, like Grokster. That didn't sway Jonker, who wrote:

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. 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. True enough, 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 ultimate consumer of the infringed work. In both situations, the end user participates in creating a new and unauthorized digital copy of a protected work. 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.

Jonker saw guidance in the recent Aereo case as well, calling it "instructive even though it is dealing with a different aspect of copyright infringement." Six justices found that Aereo's "tiny antennas" scheme wouldn't get around copyright law, and in Jonker's reading, even the three dissenting justices "simply believed the proper pathway to liability was contributory infringement rather than direct infringement." The takeaway message of the Aereo case is that "the ever-changing technological means of producing unauthorized copies of protected works must not obscure the basic protection of the Copyright Act for copyright holders."

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

Non-willful copyright infringement is punishable by fines of between $750 and $30,000 per work, and Bui has infringed 57 works. That makes his damages exposure very large, ranging from $42,750 to $1.7 million.

Bui's lawyer didn't respond to a request for comment about the order. Malibu Media was represented by Paul Nicoletti, who also declined to answer questions about the case. Malibu Media's owners haven't responded to interview requests.

Story of “poor sap” put upon by a “copyright troll” doesn't cut it

In court papers, Bui's lawyer described his client as a Vietnamese man who has become a naturalized US citizen. Bui, who owns a nail salon in western Michigan, "speaks basic but imperfect English," and said he had no idea how BitTorrent works. The software was loaded onto his computer by a friend who recommended he check out the "Kickass Torrent" website to get free movies.

"Mr. Bui did not believe and does not now believe that he was doing anything wrong in ordering movies from Kickass Torrent," wrote Bui's lawyer, James Mitchell, in court documents filed shortly after Bui was identified as the user of the relevant IP address. "He does realize as a result of this suit being filed that Kickass Torrent was distributing illegally copied movies to him."

Bui's strategy of trying to shift the blame to the Kickass Torrents site continued over the following year. In court papers, Bui admitted that he "ordered" movies through Kickass Torrents but he didn't know they were unauthorized. Bui's lawyer argued that Malibu shouldn't be allowed to "harass individuals like Don Bui who have done nothing more than unwittingly order a copy of a movie which was then copied to its computer by Kickass Torrent in the same way in which a store loads an unauthorized CD into a customer's bag."

Mitchell argued that Malibu was a "copyright troll," that used Kickass Torrents as a "honey pot" to "trap unwary consumers like Don Bui" and scare them "into paying a large sum of money to avoid the rigors and exposure of a law suit [sic]." He concluded:

[Malibu] 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. 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.

Jonker specifically rejected that analogy, saying that Bui made himself "a new and unauthorized copy of a protected work" and that his acts could not be compared to "a consumer walking into a store and unwittingly purchasing a pirated DVD." Bui's ignorance about Kickass Torrents and BitTorrent is "beside the point."

Malibu is sure to show off the Bui case as a feather in its cap to other defendants, especially after it gets a ruling on damages. The company's lawyers never hesitate to bring up the Pennsylvania "bellwether trial" which resulted in a $112,500 judgment against the only defendant who didn't settle.