BALTIMORE – If you’ve followed the news surrounding adult entertainment studios engaged in mass copyright litigation, you’re no doubt aware of the concern expressed by many attorneys, journalists and judges over the potential for embarrassment to be leveraged as a tool to extort settlements out of defendants in such copyright cases.

Part of the worry is the evidence offered by the plaintiffs in these cases amounts to an IP address associated with an account which has downloaded copyrighted material. These IP addresses are then used to obtain additional account information from ISPs, who then provide the name of the account-holder to the plaintiff.

The problem, of course, is just because someone’s IP address has been used to acquire copyrighted material, this doesn’t mean the account-holder himself/herself is the one who did the downloading. Even attorneys for the plaintiffs have conceded the names of account holders provided by ISPs in these cases are not necessarily the offender being sought. In one of Malibu Media’s cases currently being heard in Maryland, Malibu’s own counsel estimated “30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material.”

At the same time the court is concerned about plaintiffs putting pressure on account-holders who may not be the party responsible for the downloading or sharing at issue, it also recognizes rights-holders’ interest in protecting their copyrights, as well as the difficulty of identifying with certainty the precise offender, given the anonymity afforded by internet use.

Given this dilemma, what’s the court to do? In this Maryland case, at least, the court has come up with an unusual approach: To balance all the issues and concerns at hand in such cases, the court will allow Malibu to engage in settlement talks with defendants, but only with the court’s permission and under the auspices of a Magistrate Judge.

As Gaston Kroub of Kroub, Silbersher & Kolmykov recently observed in a piece for AboveTheLaw.com, this sort of arrangement is an uncommon thing for a court to impose on litigants.

“Ultimately, it is unusual to find a case where a court seems reticent about unfettered settlement discussions taking place,” Kroub wrote. “The typical experience for most IP lawyers is that courts favor settlement, and often are willing to extend resources and alter schedules so that substantive discussions can take place.”

The difference in cases like the ones Malibu brings, of course, is the nature of the material at issue – and the lingering specter of misbehavior by counsel for the plaintiff in some now-infamous cases. While clearly concerned about lawyers engaging in unethical shenanigans in porn-copyright cases, judges likely also feel it unfair to assume all attorneys pressing such cases are cut from the same cloth as John Steele and company.

In this Maryland case, it appears the court feels it has found a way to split the difference, allowing the plaintiff to pursue a settlement, while affording the defendant some manner of shield against being publicly shamed.

“When it comes to digital copyright infringement allegations for pornographic material, however, the possibility of embarrassment and the unfortunate existence of unscrupulous settlement tactics among certain plaintiffs has given at least one court a reason to monitor settlement discussions,” Kroub noted, “even as that same court allowed the plaintiff to get the information it needed to press its case further along.”

As Kroub sees it, the court’s approach is a dual-edged sword, offering a layer of protection against humiliation for the defendant, but also depriving guilty parties of a means to escape further scrutiny altogether by invoking the potential for abuse by opposing counsel as a reason to toss out their cases without allowing settlement talks at all.

“While an innocent defendant will perhaps be offered refuge from unnecessary embarrassment, porn pirates will eventually find a lack of safe harbors available to them,” Kroub wrote.