Article: Attorney Marc Randazza Works Both Sides of the Copyright Infringement Issue

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from – Las Vegas attorney Marc John Randazza sues copyright infringers one day and defends them the next.

“There’s nothing wrong with doing both sides of copyright cases,” Randazza said.

He represents alleged copyright infringers in cases filed by Righthaven, for instance, and sues them on behalf of another client, Liberty Media Holdings LLC, a gay porn company.

In fact, Randazza’s firm established headquarters in Las Vegas last year because Liberty Media moved here. (Incidentally, Randazza also recently published a commentary in an adult industry publication suggesting that other adult companies move to Las Vegas because of Nevada’s business-friendly environment.)

Randazza and his team regularly sue people who upload Liberty Media movies, branded under the name Corbin Fisher, and companies that facilitate online thefts. Uploaders, rather than individual downloaders, are targeted in the individual cases because they make movies available for others to steal.

The lawsuits typically produce settlements in the tens of thousands of dollars against people and much larger awards against companies.

The only information Randazza often has about an infringer is an IP address. He sues them as “John Does,” then subpoenas Internet providers to determine their identities. Many of the infringers settle because they’ve in fact stolen content or because they’d rather pay a judgment than be shamed by having their names be associated in public court files with porn.

Everyone is given a chance to settle or privately arbitrate cases to keep their names out of court dockets, Randazza said, and sometimes they’re let off the hook, especially if someone was using their computer without their knowledge.

But Randazza said the lawsuits are necessary because the porn industry has been devastated by the theft of its materials. The DVDs that are stolen can be worth up to $60.

“If you put out a DVD that sells 1,000 copies, and then somebody rips that to BitTorrent (file transfer technology) and you see 100,000 copies stolen – think of any business that could survive on those margins,” Randazza said. “If a hardware store was losing 10 percent of its sales to shoplifting, it would have to shut down. Imagine if it was losing 90 percent of its sales to shoplifting.”

The lawsuits, however, have created some odd legal circumstances. The Electronic Frontier Foundation, a digital rights group that is like an ACLU for the Internet and has sided with Randazza on Righthaven cases, has been critical of his porn suits, particularly a case in which Randazza claimed a man was negligent because he knowingly let his roommate use his Wi-Fi to steal porn.

“Copyright trolls attempt to game the legal process using improper claims and procedures to pressure alleged copyright infringers into settling lawsuits against them even where they have legitimate defenses,” the EFF complained about Randazza’s client Corbin Fisher.

A New York judge rejected Randazza’s negligence claim, but Randazza says he’ll try again in another case.

“There should be some negligence liability even if you leave your home Wi-Fi open and your neighbor uses it, even if you don’t know about it,” he said. “You should know better than to leave your Wi-Fi open.”

Judges in some porn cases are starting to openly wonder if porn can even be protected by copyright law – a longtime theory promoted by feminist legal scholars – causing one Randazza critic to claim Randazza now needs to put out the fire he helped ignite. Randazza sees the development as an opportunity to support the First Amendment.

The theory makes no sense, he said, because if the U.S. Supreme Court were to agree that porn is not subject to copyright protection, therefore making it unprofitable to produce, judges and jurors would be left to decide on a case-by-case basis what is and isn’t porn.

“You can’t even define pornography,” Randazza said. “There is no legal definition for the word. Even if it’s obscenity (which can be illegal under federal and state law), what is obscene in ‘Bibleburg, Tenn.,’ is not the same as what’s obscene in Las Vegas. It’s a local community standard. So do we have a mini trial before every copyright case so we can have a jury decide if the material is obscene or not under local community standards?”

The bigger issue, that has Randazza really excited, is that he believes it’s not just porn at stake. Randazza has been chosen by the national First Amendment Lawyers Association group to write briefs arguing that adult material should continue to be protected by copyright law for cases in Colorado and Massachusetts.

“The reason the FALA got involved with it is not for the micro issue of whether porn is copyrightable. It’s for the macro issue of: We don’t want courts making value judgments about intellectual property. It could be rap music next or some new medium of expression we can’t even envision,” he said.

The case touches on Randazza’s favorite part of his practice: defending people whose freedom of speech is under attack.

Another such case Randazza is working on involves a dissident Chinese news service called Boxun that operates out of North Carolina. It was sued this summer by Chinese actress Zhang Ziyi of “Crouching Tiger, Hidden Dragon” for libel after it reported using unnamed sources that she had provided prostitution services to a high-ranking Chinese official Bo Xilai.

Xilai, a prominent Communist official, is at the center of the nation’s biggest political scandal since Tiananmen Square. His wife was convicted in August of killing a British businessman.

Randazza’s firm is seeking dismissal of the actress’ libel suit, saying it is aimed at chilling Boxun administrator Weican Null Meng’s free speech. Randazza also argues that Ziyi is trying to force Meng to reveal his confidential sources in China, which he says would subject them to danger given the political climate there.

“If we reveal those sources, not only is that against the journalist’s credo, but there’s a very good chance those people will die,” Randazza said. “How do you walk that tightrope of defending your client while making sure you don’t cause someone who is providing information that is sensitive to the Chinese government to be killed?”

Such challenging free speech cases “really turn me on,” Randazza said.

“A lot of people are regular people who get in to trouble for opening their mouth or speaking truth to power,” he said. “I really like the fact that a lot of my cases end up being on the cutting edge of the law.”

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