Wrongfully Accused ‘Pirate’ Wants Copyright Holder to Pay Her Bills



Every year, thousands of people are sued in the United States for allegedly sharing pirated video, mostly through BitTorrent.

These efforts, often characterized as “copyright trolling,” share a familiar pattern. After the film companies acquire a subpoena to obtain the personal details of an alleged pirate, they contact this person with a settlement request.

The cases are not intended to go to trial, however. Instead, the copyright holders often drop their complaint like a hot potato when the accused person lawyers up to fight back.

To an outsider, this may sound positive. If the complaint is dropped the legal threat is gone. However, hiring a lawyer is not cheap and without a case, the accused Internet subscriber has to pay the bills out of his or her own pocket.

This scenario has played out many times in the past but a woman from Illinois now has a chance to make the rightsholder pay her bills.

The case in question was filed by Malibu Media, a company best known for its ‘X-Art’ adult films. Malibu accused Najia Khan of pirating eight of these films using her IP-address as evidence. However, the woman fiercely denied the allegations.

With help from attorney Erin Russell, Khan fought back. She denied the claims and submitted two counterclaims. First, she accused Malibu Media of ‘abuse of process’ for suing her without proper evidence. In addition, Khan also requested a Declaratory Judgment of non-infringement.

In the past, such requests haven’t been very successful, but in Khan’s case, the trend was bucked.

In an order issued last week, US District Court Judge Harry Leinenweber dismissed the counterclaim for abuse of process. However, he ruled that the counterclaim for a Declaratory Judgment can proceed.

The Judge sided with the defense and ruled that the accused woman can pursue a final judgment. This gives Khan a chance to argue her case, clear her name, and ask for an award of costs and fees.

“There is tremendous pressure for a defendant to settle, even if the case is meritless. Khan’s counterclaim will offer protection should she choose to challenge Malibu Media’s case on the merits instead of submitting to settlement. As she points out, it also affords an opportunity for her to clear her name,” the Judge wrote.

TorrentFreak spoke to Khan’s attorney Erin Russell who sees this as a big win. If the entire case was simply dismissed, which is what usually happens, her client could only request sanctions, which would be much harder to do.

“Every time I file counterclaims I end up arguing to the judge that this is Malibu’s way of having its cake and eating it, too,” Russell says.

“They want to drag these defendants in on an IP address, then root around, force the person to defend themselves, and then when it starts to look like the defendant is innocent, they want to run off and not pay the defendant their fees.”

While most judges have dismissed such counterclaims, Judge Leinenweber deviated from this common pattern by allowing Khan to prove her innocence. Although she still has to succeed at that, her attorney is confident that she will. If that’s the case, Malibu will have to pay her legal bills.

This is obviously bad news for Malibu, and it certainly isn’t the only recent setback for the adult entertainment company.

Over at the US District Court of New York, a similar piracy case was thrown out before it got properly underway because Malibu filed the original complaint before the copyright registrations of the videos were approved. This is not allowed, as the US Supreme Court recently clarified.

Making matters worse, the court ‘slapped‘ Malibu’s attorney on the wrist for confusing the court by listing the application dates as registration dates. This is “troubling,” Judge Jesse Furman noted, adding that it’s hard to avoid the conclusion that Malibu’s use of the term was “deliberately misleading.”

In Khan’s case, all efforts will now go into proving that she is indeed innocent. This will obviously increase the legal bills, but if Malibu has to pick those up eventually, that’s not her problem.


A copy of US District Court Judge Harry Leinenweber’s order on Najia Khan’s counterclaims is available here (pdf).

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