UPDATE: June 9, 2014 —
In a very important order issued today, Hon. Judge Kennelly of the U.S. District Court for the Northern District of Illinois ruled on Malibu Media’s motion to strike affirmative defenses raised by The Pietz Law Firm on behalf of a John Doe defendant.
In a closely-watched case (Malibu Media, LLC v. John Doe, N.D. Ill. No. 13-cv-3648) asserting a first-of-its-kind legal theory, Morgan Pietz of The Pietz Law Firm argued that if Malibu Media, LLC is found to have violated 18 U.S.C. § 2257 with respect to any of the movies it is currently suing upon, then the equitable doctrine of unclean hands should bar recovery. Section 2257 is the record keeping and notice requirement applicable to producers of sexually explicit conduct. Malibu filed a motion to strike the Section 2257 defense, among other defenses also asserted by Doe.
Mr. Pietz argued in his client’s opposition to the motion to strike that when it came to evaluating equitable defenses to copyright infringement, an unclean hands defense based on Section 2257 should be treated differently than a defense based on obscenity. The reason courts typically do not recognize an ‘obscenity’ defense to copyright infringement is that if state morality law controls what is or is not obscene, and thus copyrightable, the result would make for an impractical patchwork, where content that is legal and thus copyrightable in one place might be illegal and not copyrightable in different state. Doe argued that the obscenity defense cases should be distinguished because Section 2257 is a uniform federal statute, which has survived spirited First Amendment challenges, so the same rationale does not apply.
The Court agreed. It distinguished the obscenity defense cases, noting that the ‘patchwork’ concern did not apply to Section 2257, and it therefore denied Malibu’s motion to strike as to the unclean hands defense. This means that in this copyright infringement action which seeks damages for alleged unauthorized copying of pornography, the affirmative defense of unclean hands based on violations of Section 2257 will be allowed to proceed past the pleading stage of the case and on into discovery.
