The business of mass-copyright litigation has taken off in the past few years. Several firms around the country gather forensic evidence about illegal downloads on BitTorrent, and then file lawsuits against hundreds, or thousands, of users, demanding settlement fees of several thousand dollars each.

One of the most prolific litigators is Malibu Media, which runs an adult website called "x-art." Malibu has sued over 1,000 Internet users for downloading its content. Now that Prenda Law has become defunct and is mired in sanctions, Malibu may be the most vigorous copyright litigator in the United States.

A court document filed over the weekend by Malibu lawyers, and first published by the Fight Copyright Trolls blog, contains some striking, hitherto-unknown facts about the company's campaign of lawsuits. The new information is part of a status update filed with the court in the Northern District of Illinois, which covers Chicago and suburbs, as well as reaching into more rural parts of the state.

Gathering the evidence

The revelation that Malibu has administered lie-detector tests over porn downloads comes as part of the first section of the document, in which Malibu explains to the court its high standards for proceeding with a copyright lawsuit.

Malibu describes "additional evidence" it gathers, consisting of "a list of all other BitTorrent content that is downloaded by a defendant in a lawsuit," including music, mainstream movies, ebooks and computer programs. Malibu has actually been banned by some judges from filing this information publicly, who believed that the document typically attached as Exhibit C was being used to embarrass defendants. But Malibu is still using this evidence to decide how to proceed with its cases, since it's "critical to determining the identity of the responsible party."

The company points out that it dismisses many types of cases where defendants can't be specifically identified: small businesses with public Wi-Fi, multiple roommates within a single residence "with similar profiles and interests," or situations where the defendant can't be located. Malibu lawyers add:

Further, Malibu will dismiss its claims against any Defendant who agrees to and passes a polygraph administered by a licensed examiner of the Defendant's choosing. Out of the entirety of polygraphs administered within the United States by Malibu, no Defendant has passed and all such examinations have subsequently led to the Defendant settling the case.
The company doesn't reveal how many polygraph tests it has administered.

Malibu has sued 886 people in northern Illinois, some individually and some as "joined defendants." The company's statistical snapshot is revealing: 49 defendants have been dismissed for "hardship," 259 for "insufficient evidence," and 304 because it could not get discovery from the ISPs. (That could be because the ISP didn't retain the subscriber data, or Malibu's subpoena was quashed, or because the ISP data handed over didn't match other databases used by Malibu.) The company has settled 174 cases. It has won judgments in two cases, is "negotiating" in 30 cases, and is actively litigating eight cases. 60 cases are listed as being either in pre-discovery or pre-litigation phases.

Who's a troll? Critics "moved the goalpost"

Later in the document, Malibu's lawyers couch the lawsuits in terms of the company's overall goal: "To create erotica that is artistic and beautiful."

The company notes that the single federal judge who oversaw an entire trial about Malibu Media's claims, US District Judge Michael Baylson, specifically said the company was not a "copyright troll." "Rather, Malibu is an actual producer of adult films and owns valid copyrights," wrote Baylson.

Malibu says it has no interest in embarrassing defendants, and allegations that it "seed[s] its own copyrighted works on BitTorrent" (as Prenda Law is alleged to have done) are "sheer false speculation." The company goes on to slam its critics, saying that the "troll" moniker is one they have shifted to meet their needs:

The undeniable fact is that some people and entities will never agree with the enforcement of copyrights on the Internet. At first, critics labeled “copyright trolls” as those who acquired copyrighted content for the sole purpose of litigation. Once Judge [Michael] Baylson of the Eastern District of Pennsylvania, as a component of Malibu’s Bellwether trial, determined that Malibu did not fit this definition of a "copyright troll," the critics moved the goalposts and determined that any entity who derives an appreciable percent of their income from litigation is a "copyright troll." Once it was disclosed that a de minimis percent of Malibu’s income is derived from litigation, the definition changed to an amorphous "anyone who files a lot of lawsuits." With that definition, any person or entity owning content that is heavily infringed is destined to be called a "troll"...

Critics mainly devolve to ad hominem attacks and offensive and patently false suppositions about myriad issues including compliance with 18 U.S.C. § 2257, technicalities of contracts with vendors, and other such ancillary details unrelated to the core issues at hand in these cases. These detractors will claim to support copyrights in principle, but condemn those who try to enforce them.
The question of whether Malibu is able to position itself as a copyright enforcer that's able to sue thousands, but "do it right"—whatever that may mean—remains to be seen.

Embarrassment of defendants may not be a part of their business model, but it's certainly a convenient byproduct. Companies that have tried to engage in mass-copyright litigation over mainstream content haven't been too successful, although the strategy was recently embraced by the company that produced Dallas Buyers Club.

An attorney for Malibu Media didn't respond to a request for comment for this story.

The FCT blog estimates that, based on settlement figures ranging from $2,000 up to $10,000, Malibu may have earned as much as $1 million from the 174 settlements it has reported in this district.