One of the many alleged BitTorrent users to fall victim to copyright trolls in recent years has launched an impressive counterattack against a plaintiff who accused him of downloading an adult movie. Jeff Fantalis of Louisville wants millions of dollars in damages for defamation, emotional distress and invasion of privacy, plus a prominent retraction in a local newspaper. Fantalis further asks the court to rule that porn can’t be copyrighted as it is not a “useful art.”
Since early 2010, hundreds of thousands of people in the U.S. have been sued for downloading and sharing copyrighted content on BitTorrent.
Since there are so many of them these lawsuits are hardly newsworthy anymore, however, things do get interesting when defendants decide to fight back. One excellent example is the counter-suit filed by Jeff Fantalis last week.
In common with many others in similar situations, Fantalis was sued by a porn outfit (Malibu Media) who accused him of downloading and sharing one of their movies. After obtaining the personal information of alleged infringers through a subpoena, Malibu Media generally asks Internet account holders to settle their case for a few thousand dollars.
This tactic is quite effective, as settling is often cheaper than hiring a lawyer. On top of that, the prospect of being named in a lawsuit in which one is accused of downloading an explicit adult movie is something that people seek to avoid.
However, Fantalis – who says he never downloaded an adult movie in his life – has chosen to put up a fight and has submitted an elaborate counter-suit.
In dozens of pages the accused movie pirate explains how Malibu Media and other “copyright trolls” operate. Fantalis accuses these companies of harassment and extortion and also brings up the fact that the technologies that are used to collect IP-addresses are not fool proof.
Fantalis further notes that these copyright trolls show their true nature by not asking websites to remove links to their movies.
“If the plaintiff companies were truly concerned about protecting their copyrights and preserving profits thereon, one would expect to see such companies take certain actions once they had the IP-addresses and personal information obtained through their investigations and lawsuits,” he argues.
According to Fantalis, Malibu Media and others keep these links alive so they can collect data on more potential copyright infringers. In other words, they are fine with people pirating their movies, as that is their business model.
“However, [removal of links] is not the course of action pursued by these pornography companies. To the contrary, not only do they not remove their films from the Internet, they encourage the continued downloading of their work through the use of ‘honeypots’ in order to promote the income stream obtained through settlements of threatened lawsuits.”
After describing how these copyright trolls operate, Fantalis goes on to accuse Malibu Media of wrongdoing on several counts.
For defamation, the intentional infliction of emotional distress, abuse of process and invasion of privacy he asks the court for a million in damages each. In addition the accused BitTorrent pirate wants a public retraction and apology in a local newspaper ad, not smaller than a quarter page.
“…[The advertisement] shall specifically retract the claims of the Complaint, acknowledge that Plaintiff wrongfully brought this lawsuit against the Defendant, state that this lawsuit was groundless, acknowledge that the Defendant had not infringed in any manner against the plaintiff and that Defendant is innocent in this matter, and apologize to the Defendant…”
Finally, Fantalis asks the court to rule that Malibu Media’s movies aren’t protected by U.S. copyright law, as porn can’t be copyrighted. He backs up this claim with a line of reasoning we’ve seen before, namely, that explicit porn doesn’t fit the basic principle that copyright should promote “the progress of science” or “useful arts.”
Needless to say, it will be interesting to see how the court responds to this counterclaim.
While there is no guarantee that there will be a ruling on any or all counts, the counter-suit has a wealth of information for other defendants and lawyers. As Jane Doe points out, the filing in itself contains the best explanation of the copyright trolls’ “extortion” scheme that exists to date.