Policy —

Bribery, gay porn, and copyright trolls: The rise and fall of lawyer Marc Randazza

Arbiter says Randazza "negotiated" a bribe, lied to employer, and must pay $600k.

Marc Randazza, from his website after a public appearance.
Marc Randazza, from his website after a public appearance.
Marc Randazza / Illustration by Aurich Lawson

The way attorney Marc Randazza tells it, his relationship with Jason Gibson started breaking down in the spring of 2012. Gibson, the CEO of gay porn studio Liberty Media, had hired Randazza as general counsel three years earlier. The two became the closest of friends; their families socialized together, and Randazza's kids even called Gibson "uncle."

But that April, Gibson arranged to use Randazza's office for a porn video shoot.

Randazza would later describe the scene as a humiliating bacchanal, calling it "harassment." An arbitration claim he later made against Liberty said that Gibson had forced Randazza, "who is a heterosexual family man with two young children, to witness homosexual activities" and that Gibson filmed "such activities in Mr. Randazza's private office... on his desk and on top of photos of his wife and toddler children." Later, Randazza said the shoot included a woman urinating on his desk.

"No matter what the industry," the complaint read, "there is a line over which conduct becomes extreme and outrageous."

During his time at Liberty, Randazza had become famous in the tight circles of First Amendment lawyers and their admirers. Most notably, he had taken down Righthaven, a "copyright troll" that became notorious for suing hundreds of small-time bloggers.

But he also became a lightning rod for controversy when he spoke up for Liberty's own copyright lawsuits against tens of thousands of Internet users accused of downloading porn illegally. Company executives now claim that the Liberty lawsuit campaign was actually a smokescreen for Randazza's own misbehavior.

Liberty COO Brian Dunlap admitted to Ars that the video shoot in Randazza's office did happen, but he said that shooting in offices was standard—everyone knew it, and Randazza even encouraged it. According to Dunlap, Randazza's personal items weren't even touched, and there was no urination. Instead, he claimed that the relationship between Liberty and its lawyer actually fell apart later, in August 2012, when Gibson first suspected that Randazza might be ripping him off.

Randazza had recently wrapped up a legal settlement against a website called Oron.com, a cyberlocker that Liberty accused of copyright infringement. Oron had agreed to pay Liberty $650,000—but, according to the invoice, another $75,000 would go to Randazza personally.

"Jason [Gibson] wrote, 'Who gets this?' on the document," Dunlap said. "Then he walked off and said, 'What the hell did I just read?'"

Later that month, Randazza left the company. "Given our now openly adversarial relationship, it seems appropriate that I withdraw from representing Liberty in any further matters," he wrote to Gibson.

Gibson took that as a resignation letter. "It is unfortunate matters have come to this," he responded in an e-mail that also demanded Randazza hand over all Oron settlement funds to Liberty immediately.

Instead, Randazza filed his arbitration claim against Liberty for back pay, expenses, and damages arising from harassment and wrongful termination. Randazza was represented by another prominent First Amendment lawyer, Ken White, who blogs at Popehat and who took the case on a contingency basis.

"I was doing my client's will, for my client's benefit," Randazza told Ars about Liberty's mass copyright litigation, one of few on-record responses he provided by telephone. Randazza and White instead offered Ars many court documents to lay out their view of the situation. Randazza added that he couldn't "fairly respond" to comments about Liberty's lawsuits against torrenters and its related amnesty program due to attorney-client privilege.

Randazza also said he wouldn't provide an image for this story. "I can't see why I'd be inclined to provide a photo for a story that appears like it's going to be the worst fucking thing that's happened to me this year," he said. "I don't want to authorize the use of any images that I hold copyright to."

In the end, the arbitration with Liberty didn't go according to plan. The man who had taken down Righthaven was caught in a no-holds-barred legal fight with the employer who had helped him do so. And this last dispute, which Randazza initiated, would ultimately lead to the attorney's own downfall—while shedding an unusual amount of light on the way mass copyright litigation campaigns are designed and run.

Serving many masters

Randazza was hired by Liberty in 2009, leaving behind a private law firm in Florida where he worked. His employment contract (PDF), attached as an exhibit in court papers, included a clause saying that Randazza would “taper down” all outside client work with a few exceptions.

"We told him, 'We need you to be devoted to us,'" Dunlap told Ars.

The private clients he was allowed to serve were extremely small-time, Dunlap stressed. “An old lady who runs a bookstore” was one, and Randazza said he’d be billing an hour a month for that. Per his contract, the extra work was all to be outside regular hours. Dunlap said that no one at Liberty thought Randazza would be doing for-pay work for porn studios that Liberty viewed as competitors.

But as the backpay arbitration eventually proceeded through discovery, Liberty learned that Randazza was working up to 80-90 hours a month for outside clients. The arbitrator, in siding with Liberty, noted that Randazza's outside work included companies like Titan Media, Kink.com, and Bang Bros. The most striking example was Xvideos, a company Liberty was seriously considering suing for copyright infringement not long after it hired Randazza, Dunlap said.

Liberty has never been shy about using courts to go after those who pirate its content, though management first wanted to focus on "big offenders"—businesses like Xvideos, which ran a “tube” site that allegedly hosted Liberty's content without permission. Xvideo’s alleged infringement was one of the first issues Randazza had to address as general counsel, because by early 2010, Liberty’s porn flicks were showing up on Xvideos left and right. Liberty employees and friends in the industry would see those videos and forward links to Dunlap and Gibson.

"Are we pursuing these guys?" Gibson asked Randazza by e-mail in February 2010.

"I am pursuing them, yes," Randazza replied. "But, this guy, I'm building a little trap around."

One year later, Liberty-owned Corbin Fisher videos were still popping up on the Xvideos site. Randazza didn't want to move forward legally against the company, saying that Xvideos was “protected” because it had signed on to use Vobile, a digital fingerprinting system that Randazza promoted to them. “They’ve actually been the poster child for tube sites that behave,” Randazza wrote in an e-mail. In a separate message, he explained further, “The system truncates them [Corbin Fisher videos] to 3 min, because that is what we set our rules to.”

Reading that answer, Gibson lost it.

"No video content is allowed, EVER," he wrote to Randazza. "NEVER EVER… Who authorized them to use our content like this? Any fucking idiot knows that 3 minutes is an eternity to get off to... CUT THE VIDEOS OFF.”

Brian Dunlap, COO of Liberty Media and its production company Excelsior. The company is in a legal dispute with Marc Randazza, its former general counsel.
Enlarge / Brian Dunlap, COO of Liberty Media and its production company Excelsior. The company is in a legal dispute with Marc Randazza, its former general counsel.
Liberty Media / Excelsior
While Dunlap shared some documents from the arbitration with Ars, he didn’t share documents related to Randazza’s Xvideos work due to ongoing legal proceedings. However, Dunlap said that those documents show Randazza took a $35,000 retainer from Xvideos—and continued to bill that company every month. While advising Liberty not to sue Xvideos, Randazza had been working for the company.

For his part, Randazza doesn’t deny working for Xvideos. But he claims the work wasn’t a conflict, despite the language in his contract promising to “taper down” outside work.

"[Liberty's] Corbin Fisher contemplated and encouraged Mr. Randazza to maintain an outside legal practice," Randazza wrote in his arbitration claim. "Randazza was under no obligation to clear any other representation with Gibson or Corbin Fisher, and in many circumstances did not... Nevertheless, Randazza never entered into representation where a conflict was present, and if any conflict were to appear, resolved it by discharging the other client."

Randazza concluded that his "tenure at Corbin Fisher was, by all metrics, a resounding success."

Where Randazza saw success and an understanding he'd work elsewhere, Liberty saw serious betrayal.

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