A Chicago federal judge has dismissed the counterclaim by a defendant in an adult movie copyright infringement case, who tried to escape the lawsuit against him by arguing pornographers had set him up to be sued by planting their skin flicks on an internet medium known for facilitating video piracy.

The Dec. 15 ruling was issued by Judge Harry Leinenweber in U.S. District Court for Northern Illinois. 

Los Angeles-based Malibu Media, which produces adult videos, filed a copyright infringement suit Dec. 30, 2015, against Matthew Thal, of west suburban Bartlett. The suit alleged Thal downloaded and shared two dozen Malibu Media movies via video sharing software BitTorrent. 

Thal countered by alleging Malibu had clandestinely uploaded - or “seeded” - the movies to BitTorrent, knowing video pirates favored the software. With this knowledge, Malibu allegedly hoped to “entrap” users, who would download the videos and make themselves “lucrative targets” for infringement suits by Malibu. Thal further alleged Malibu, in fact, is a “troll” that “makes more income from suing and settling with copyright infringers than it does from the licensed distribution or display of its works.” 

In Thal’s view, Malibu allegedly counts on defendants to settle suits on Malibu’s terms, because defendants are embarrassed and fear litigation expenses. 

Malibu lodged the suit with “unclean hands,” according to Thal. 

Thal alleged Malibu’s conduct violated the Illinois Uniform Deceptive Trade Practices Act, as well as the Illinois Consumer Fraud and Deceptive Business Practices Act. Malibu responded with a motion to dismiss Thal’s counterclaim, which found traction with Judge Leinenweber. 

Thal defended his claim by contending the availability of the Malibu movies on BitTorrent, created the impression users were free to download the videos. However, Leinenweber said users wouldn’t know Malibu put the videos on BitTorrent, which meant users would not further know whether Malibu had authorized the downloads. 

“It can hardly be said that BitTorrent users had ‘little alternative’ except to download Malibu Media’s pornographic movies simply because the movies were available on BitTorrent,” Leinenweber observed. 

The judge also noted that although Thal maintained Malibu’s actions were deceptive and unfair, Thal did not back that allegation with any evidence.

Despite rejecting Thal’s arguments and dismissing his counterclaim, Leinenweber did leave the door cracked open for Thal to take another shot. 

Leinenweber pointed out Thal, in bringing an action under the Illinois Uniform Deceptive Trade Practices Act, did not seek an injunction to prevent more harm to himself – the only remedy open under the Act. In addition, Thal failed to argue he is likely to suffer future harm, which would make an injunction appropriate. 

Leinenweber noted Thal could file an amended counterclaim, in which he could make a case for future harm by contending he faces the cost of fighting future Malibu suits, if his IP address is again alleged to have been used to pirate Malibu movies. 

The next hearing in the case has not been set. 

Thal is represented by the Chicago firm of Tolpin & Partners. Malibu Media is represented by Media Litigation Firm, of suburban Geneva.

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Organizations in this Story

Media Litigation Firm
1144 East State Street
Geneva, IL - 60134

Tolpin & Peters
100 North LaSalle Street
Chicago, IL - 60654

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