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).


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