United States District Court

Northern District of Indiana

Hammond Division Case No. 2:13-cv-00099-rlm-jem 

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Malibu Media, llc

Plaintiff

– v –

John Doe subscriber assigned ip address

71.194.56.83

Defendant

Defendant’s Response to 

Plaintiff’s Motion to Strike 

 

Introduction

Malibu Media’s complaint accuses John Doe of directly infringing on the

copyrights it allegedly holds in explicit pornographic films. Doe asserted nine 

affirmative defenses in response. Malibu Media filed a motion to strike several of 

the affirmative defenses, believing them to be lacking and legally insufficient. But it 

would be premature for the court to strike the defenses without allowing Doe to 

conduct discovery. 

Argument

A. Legal Standard

Federal Rule of Civil Procedure 12(f) gives courts the power to strike insufficient 

defenses: “Upon motion made by a party . . . the court may order stricken from the 

pleading any insufficient defense.” For purposes of this motion, “all well-pleaded 

facts are taken as admitted on a motion to strike but conclusions of law or of fact 

do not have to be treated in that fashion.”1 Matters outside the pleadings are 

normally not considered. Id. In general, motions to strike defenses are disfavored:

 1 5a C. Wright & A. Miller, Federal Practice and Procedure § 1380, at 655–56 

(1990).

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Motions to strike a defense as insufficient are not favored by the 

courts because of their dilatory character. Thus, even when 

technically appropriate and well-founded, they often are not 

granted in the absence of a showing of prejudice to the moving 

party. Nonetheless, they are a useful and appropriate tool when the 

parties disagree only on the legal implications to be drawn from 

uncontroverted facts. But even when the defense presents a purely 

legal question, the courts are very reluctant to determine disputed 

or substantial issues of law on a motion to strike; these questions 

quite properly are viewed as determinable only after discovery and 

a hearing on the merits.

Nor will a Rule 12(f) motion be granted if there is a substantial 

question of fact or a mixed question of law and fact that cannot be 

resolved, even if it is possible to determine the issue by drawing 

inferences from facts and statements that are not disputed.... In 

sum, a motion to strike will not be granted if the insufficiency of the 

defense is not clearly apparent, or if it raises factual issues that 

should be determined on a hearing on the merits.2

On the other hand, motions to strike “serve a useful purpose by eliminating 

insufficient defenses and saving the time and expense which would otherwise be 

spent in litigating issues which would not affect the outcome of the case.”3 Still, the

Court may only strike those defenses “so legally insufficient that it is beyond cavil 

that defendants could not prevail on them.”4 In determining whether an affirmative 

defense is viable, a court does a three-part analysis.5

First, a court should assess whether the matter is appropriately pled as an 

affirmative defense. “Only matters that deserve a clear ‘no’ answer will be stricken 

to make the pleadings more concise.”6 Second, a court should consider whether the 

defense has been adequately pled under the requirements of Federal Rules of Civil 

Procedure 8 and 9. If a party fails to meet these basic pleading requirements, a 

 2 Id., § 1381, at 672–78.

3 United States v. Marisol, Inc., 725 F. Supp. 833, 836 (M.D. Pa. 1989).

4 United States v. Kramer, 757 F. Supp. 397, 410 (D. N.J. 1991).

5 Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1295 (7th Cir. 

1989)).

6 Id.

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court should dismiss the defense with leave to amend. Finally, a court should 

evaluate the sufficiency of the defense pursuant to the standard followed in 

assessing 12(b)(6) motions, i.e., the defense should be stricken only if the defendant 

cannot prove any set of facts in support of the defense that would defeat the 

complaint.7

A defense should not be stricken “if there is any real doubt” about its validity, 

and “the benefit of any doubt should be given to the pleader.”8 Since it is often 

unclear whether a defendant should properly plead a argument as a denial or a 

defense, and because a defense not plead is waived, a “cautious pleader” will often 

err on the side of labeling an argument as a defense.9 There is no reason to penalize 

such a mistaken pleading by granting a motion to strike.

10

B. Malibu Media’s motion is premature 

1. Abandonment, Copyright Misuse

Malibu Media claims that Doe’s first affirmative defense should be stricken as 

insufficient. “In copyright, waiver or abandonment of copyright ‘occurs only if 

there is an intent by the copyright proprietor to surrender rights in his work.’”11

Malibu Media contends that this lawsuit is in itself evidence that it hasn’t abandoned its copyright protection. But just bringing this suit does not fully rebut the 

claim that Malibu Media has abandoned its copyright. Further discovery is needed 

for Doe to show that Malibu Media has not only failed to follow established protocols to ‘takedown’ copyrighted material, but also has left certain material on Bit 

Torrent sites specifically to pursue litigation.

 7 Id.

8 Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 736 (N.D. Ill. 1982).

9 Id.

10 Id.

11 A&M Records, Inc. v. Napster, Inc., 239 F.3D 1004, 1026 (9th Cir. 2001) (citing 

4 Melville B. Nimmer & David Nimmer, Nimmer On Copyright ¶ 13.06 

(2000)).

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Malibu Media further states that it hasn’t engaged in any anti-competitive 

behavior. “The doctrine of misuse ‘prevents copyright holders from leveraging their 

limited monopoly to allow them control of areas outside the monopoly.’”12 Malibu 

Media has used this to state that Doe’s affirmative defense is insufficient. But 

Malibu Media has tried to “control areas outside the monopoly,” otherwise why 

would Malibu Media include ‘Exhibit c’ with its pleadings? Malibu Media has 

continued to attach this ‘Exhibit c’ for unknown reasons even after being admonished. As the United States District Court for the Western District of Wisconsin 

noted in a recent order,13 these allegations are “nonsensical.” Complaints are 

pleadings and have no evidentiary purpose. In fact, Malibu Media has used this 

information to try to pressure settlements.14 Third-party negotiators utilized by 

Malibu Media have also stated that they will report to other media groups the 

‘alleged’ downloads if settlement is not reached.15

Therefore, Doe’s affirmative defense should not be stricken and the Court 

should allow further discovery in this matter.

2. Communications Decency Act and/or the Online Copyright

Infringement Liability Limitation Act

Malibu Media claims that the affirmative defense based on the Communications 

Decency Act and/or the Online Copyright Infringement Liability Limitation Act 

should be stricken because it is improper. But what is at issue is whether Doe

illegally downloaded copyrighted material. Doe denies this charge. In light of the 

 12 Assessment Technologies of WI, LLC v. WIREdata, Inc., 350 F.3d 640, 647 (7th 

Cir. 2003).

13 Id.

14 Malibu Media, LLC, v. John Doe, subscriber assigned IP address, 

68.40.46.12, 2:13-cv-12201-DPH-DRG, Document #7, Declaration of 

Morgan E. Pietz, Section h.

15 Malibu Media, LLC, v. John Does 1-15, 3:12-cv-00369-LAB-DHB, 

Document #19, Exhibit G.

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difficulties involved with tracing Bit Torrent downloads,16 it is quite possible that 

Doe did not actively engage in this behavior. Why? Malibu Media only ‘traced’

John Doe through an Internet Protocol Address. This has been shown to be a 

questionable source of accurate information.17 The reason for this?

The increased use of technology like Network Address Translation and home 

WiFi have created difficulties in accurately targeting Bit Torrent downloads. Quite 

simply, Doe could have had her WiFi used by a third party to download 

copyrighted material. If this were the case, Doe would have provided internet 

access for this illegal activity and should not be liable, just as an Internet Service 

Provider is not liable for the activities of others. Further discovery is warranted to 

pursue this defense.

Therefore, Doe’s affirmative defense should not be stricken and this Court 

should allow further discovery in this matter.

3. Unclean Hands

Malibu Media claims that Doe’s unclean hands defense stricken. But it would be 

premature and unfair to strike this defense before proper discovery. Malibu Media

has failed to send out Digital Millennium Copyright Act (dmca) takedown notices 

over its allegedly copyrighted material. Yet sending these notices is the overwhelming strategy to combat pirating used by the Motion Picture Association of America, 

the Recording Industry Association of America, and many other media entities that

target Bit-Torrent sites.18

Why would Malibu Media allow their copyrighted material to remain on Bit 

Torrent sites? Why wouldn’t Malibu Media issue dmca takedown notices to 

 16 http://dmca.cs.washington.edu/dmca_hotsec08.pdf

17 https://freedom-to-tinker.com/blog/mfreed/inaccurate-copyrightenforcement-questionable-best-practices-and-bittorrent-specificatio/

18 http://www.google.com/transparencyreport/removals/copyright/

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Google and limit the unlawful consumption of its pornographic material? Because 

if Malibu Media engaged in these activities it would have no basis for the current 

flood of lawsuits it’s filed throughout the country.

Malibu Media’s odd behavior is why further discovery in this matter should be 

allowed. It would be premature for this Court to strike Doe’s unclean-hand 

defense. This is especially true when the Court takes into consideration the major 

difficulties that have been found to exist with Bit Torrent tracing programs.19

Many of the results are inaccurate and tracing programs have found that printers 

who do not even possess the technology to download Bit Torrent materials were 

responsible for engaging in this ‘illegal’ behavior. If Malibu Media was seriously 

trying to limit the proliferation of its copyrighted material, it would utilize all 

available tools and engage in the mostly wildly employed legal deterrent, dmca

takedown notices, to cut off links to that media.

Therefore, Doe’s Affirmative Defense should not be stricken and this Court 

should allow further discovery in this matter.

4. Waiver

Malibu Media claims that Doe’s waiver defense should be stricken because it is 

insufficient. But as argued earlier, it would be premature for this Court to limit 

discovery on these matters. Waiver and abandonment are clearly different defenses 

and are not duplicative. Doe would like to engage in further investigation, 

especially because of Malibu Media’s peculiar tactics in enforcing its copyrights.

Therefore, Doe’s Affirmative Defense should not be stricken and this Court 

should allow further discovery in this matter.

5. Unconstitutionally Excessive Damages

Malibu Media claims that Doe’s unconstitutionally excessive damages defense 

 19 http://dmca.cs.washington.edu/dmca_hotsec08.pdf

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should be struck as improper. But Doe has not had the opportunity to engage in 

proper discovery and as such, it would be premature for this Court to cut off a 

possible defense. If Doe’s home Wifi was used to download copyrighted material 

without Doe’s consent, then the damages alleged by Malibu Media would 

constitute excessive damages. It is just far too early for Doe to rule out this defense.

Furthermore, Malibu Media would not be prejudiced by the inclusion of this 

defense and as such should not be allowed to strike it from Doe’s pleading.

Therefore, Doe’s Affirmative Defense should not be stricken and this Court 

should allow further discovery in this matter.

Conclusion

It’s too early in the case to limit Doe’s defenses—especially on a motion to strike. 

Malibu Media’s motion should be denied.

Date: September 17,

2013 /s/ J. Thomas Vetne

J. Thomas Vetne | 19606-64

Jones Obenchain, llp 600 KeyBank Building

202 S. Michigan St.

Post Office Box 4577

South Bend, IN 46634 -4577

574.233.1194 | 574.233.8957 fax

jtv@jonesobenchain.com

Defendant’s Attorney

Certificate of Service

On September 17, 2013, I electronically filed this motion with the clerk using the

cm/ecf system which sent notification Paul J. Nicoletti, plaintiff’s attorney.

/s/ J. Thomas Vetne

J. Thomas Vetne | 19606-64

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