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17 Chi.-Kent J. Intell. Prop. 1 (2017-2018)

handle is hein.journals/jointpro17 and id is 1 raw text is: CHASING ECHOES OF OBSCENITY EXCEPTIONALISM IN COPYRIGHT: RECENT SWARM CASES JAMES R. ALEXANDER* I. ECHOES IN RECENT SWARM CASES: NEXT PHASE AND ITS PROGENY ......4 II. THE ASSERTION OF DIVERGENCE AMONG THE DISTRICT COURTS ........10 III. THE COURT AS CENSOR MORUM ............... .................16 IV. WALCOT V. WALKER AS THE WELLSPRING OF CONTENT EXCEPTIONALISM. ..........................................19 V. RECONSIDERING WALCOT ......................................28 VI. FALSE ECHOES ...............................................34 Over the past six years, Malibu Media, LLC, (Malibu) producer and distributor of hardcore pornographic films through its website Xart.com, has filed thousands of copyright infringement suits against 'swarms' of John Does for using a BitTorrent file-sharing protocol to allegedly and without license download and view their products.' Malibu's strategy has been to use court subpoena authority to identify large numbers of heretofore anonymous internet subscribers and then threaten them individually with copyright infringement claims that would prospectively result in fines and public embarrassment unless they agreed to an offered private settlement.2 While most illegal downloading by file sharing has involved noncontroversial fare, such as mainstream movies, vintage * Professor of Political Science, University of Pittsburgh at Johnstown. The author wishes to acknowledge the helpful guidance and suggestions of H. Tomas Gomez-Arostegui, Douglas Hay, Henry Mares, Simon Stern, and the research assistance of Rhiannon Markless. 1. As reported by Matthew Sag, Malibu filed over 1,700 copyright suits against over 6,000 John Doe defendants related to pornography between 2012 and the first quarter of 2014. The second most prolific plaintiff was Patrick Collins, Inc., with over 200 suits filed between 2001 and 2014 against over 11,000 John Does. See Matthew Sag, Copyright Trolling, An Empirical Study, 100 IOWA L. REV. 1005, 1131-1132 tbls.1 & 2 (2015). In the three years since January 1, 2014, Malibu filed suits against 5,975 individual John Does, predominantly in the second (1,126), seventh (995), fourth (991), and sixth (883) circuits. See generally Justia Dockets & Filings, https://dockets.justia.com (last visited January 16, 2017). 2. See Luke Curran, Copyright Trolls, Defining the Line Between Legal Ransom Letters and Defending Digital Rights: Turning Piracy into a Business Model or Protecting Creative from Internet Lawlessness?, 13 J. MARSHALL REV. INTELL. PROP. L. 170, 194 (2013). 1

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