Louisville: It's a common tactic for pornography producers trying to protect their product from online piracy: They sue unknown "John Does" who illegally download movies, then go to Internet providers to learn their true identities and collect.
Hundreds of porn companies have filed thousands of lawsuits across US in recent years. Often, representatives will call up the defendants, offering quick settlements of $1,000 or $5,000 to avoid facing $150,000 claims and the embarrassment of being publicly outed.
Some defendants in the lawsuits are pushing back, arguing that they're being squeezed for quick settlements even when they claim to have never downloaded anything.
A Kentucky woman, Jennifer Barker, is suing the five companies that targeted her and is seeking class-action status to hold the companies accountable for harassing calls for settlements.
The five companies, out of California and London, have filed more than 500 lawsuits in 17 states against John and Jane Does in recent years.
Barker's attorney, Ken Henry of Louisville, who filed the lawsuit, estimated 500,000 people have been sued or gotten calls from representatives of the companies since 2007.
"Nobody wants their name associated with downloading porn ... " Henry said, giving the example of a typically graphic movie title.
Among those being sued were 57-year-old Josip Gotvald, a Croatian immigrant living in Tempe, Arizonia. When Gotvald received a notice that he defaulted and lost a copyright lawsuit, he didn't know what it meant and hadn't ever heard of the company suing him, Raw Films, or the film he was accused of downloading, Raw Rescue.
"I have never used a computer, much less used one to download a movie," Gotvald wrote in an affidavit.
Henry and other critics call the lawsuits "copyright trolls," a tactic used to extract quick cash settlements from people who have no connection to any downloaded movie but want to avoid having their names associated with porn.
Two of the companies, K-Beech, Inc., and Third Degree Films, both of Chatsworth, California, did not return repeated emails seeking comment. Contact information for the other three companies named in Barker's suit - Patrick Collins, Inc., of Canoga Park, California, Malibu Media of Malibu, California, and Raw Films of London - could not be located.
Marc Randazza, a Las Vegas-based attorney, has represented adult film companies in protecting their copyright from online downloaders. The filmmakers are generally small businesses who can't make money if online users are taking their product for free, he said.
"All it produces is copyrighted material. If you steal that from them, what do they have?" Randazza said. "Whether you like pornography or not, diversity of entertainment is part of what America is all about."
The lawsuits follow a general pattern: The film company sues a series of "John Does" and "Jane Does" identified only by Internet provider numbers, then seeks to subpoena the Internet provider for the subscriber's name. Once the company has the name, representatives call the subscribers and ask for a settlement ranging from $1,000 to $5,000 and threaten to file a $150,000 lawsuit for each copyrighted download that would name them publicly as someone who was associated with a pornographic film company.
Frequently, the film companies band together and seek a waiver of court fees for the lawsuits, minimizing their costs and making any money collected from the calls strictly profit.
Henry described the lawsuits as a business model that's probably more profitable than making films.
"It's brilliant in one sense of the word," Henry said. "But, it's wrong. It's just absolutely wrong."
Some federal judges are starting to agree and push back. Magistrate Judge Gary R Brown in the Eastern District of New York pointed out how unreasonable the assumptions made by the film companies are in a ruling handed down in May in a case involving K-Beech.
The judge cited three "John Does" in one of the cases before him. Each had reasons or proof that they didn't or couldn't have downloaded the porn in question. One was at work, another was an octogenarian with "neither the wherewithal nor interest" in such a download, while a third found copying such a film contrary to her "religious, moral, ethical and personal views."
"The assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time," Brown wrote. "It is no more likely that the subscriber to an IP address carried out a particular computer function - here the purported illegal downloading of a single pornographic film - than to say an individual who pays the telephone bill made a specific telephone call."
Henry, the Kentucky attorney, agrees and notes that unsecured wireless accounts can leave open the possibility of people tapping the network and downloading anything they want.
"You don't know who is using the Internet on which computer," Henry said.
Randazza said generally, when an Internet provider number shows up, either the person who signed on to the service or someone connected to them has downloaded the movie in question.
"I'm not saying it's a 100 per cent hit rate," Randazza said. "But, it is so rare you actually find someone who had no connection to it at all."
Gotvald, who set up a wireless account for his college-aged children, said in his affidavit that someone must have linked to his wireless network.
"I believe that a neighbour or passer-by access my wireless Internet connection and used it to download Raw Films' movie Raw Rescue," Gotvald wrote. "I have never seen any movie that could be the sort of movie I understand Raw Rescue to be, nor would I want to."
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