Over the past several years, the music industry in the United States showed that it was willing to take extreme measures to protect its copyright interests. The RIAA filed a number of lawsuits against individuals who had allegedly downloaded copyrighted music tracks using services such as Kazaa or Grokster. These tactics were controversial, as some of the defendants included the elderly and pre-teenage children. The RIAA’s efforts also targeted the software file sharing services themselves, all but driving them out of existence.
In the past year or so, the American pornography industry has followed suit (no pun intended). A handful of lawyers around the U.S. have filed federal copyright infringement lawsuits. What makes these cases different, however, is that the identities of the defendants are unknown.
In the RIAA law suits, the RIAA presented evidence that showed defendants had music files on their computer hard drives and made them available for sharing. The nature of the file sharing software made this easy: the file sharing system operated based on a directory of the songs you had on your computer. Browsing a user’s music library was as simple as clicking the mouse. Make notes about what the user has downloaded and is sharing, and you have your evidence of copyright infringement.
In the porn lawsuits, however, a different type of file sharing technology is at issue: Bittorrent. In this type of file sharing, there is no centralized directory of files, and one cannot browse another user’s porn movie library. Therefore, the porn industry’s lawyers have to look for evidence of unlawful file sharing elsewhere. Bittorrent works in a way where no single person is sharing the file in question. Rather, everyone shares what parts of a file they have on their computer with others while simultaneously downloading other parts from the others. The plaintiffs in these lawsuits apparently use some kind of software that tracks the exchange of data in Bittorrent and that can identify the Internet Protocol address of the person downloading the file.
An IP address is not the same as knowing someone’s name and address, however. To find out who the possible infringer is, the plaintiff needs to obtain information from the infringer’s Internet Service Provider, such as Comcast or Qwest Communications. The ISPs have uniformly refused to provide this information to the plaintiffs and their attorneys, so the porn industry has taken an unusual approach: filing lawsuits against John Doe.
The various lawsuits share a similar caption, such as First Time Videos, LLC v. Does 1–21. The complaints explain that the defendants are known only by an IP address used on a given date and at a given time. The complaints identify the IP addresses and temporal data. In separate motions, the plaintiffs ask the federal courts for permission to conduct early discovery: sending a subpoena to the ISP seeking the contact information for the customer that matched the IP in question on the given date and time.
The ISPs have made it a practice (either voluntarily or via instruction from the courts) to notify their customers that their information has been subpoenaed. Customers then have the option to file a motion to quash the subpoena before the ISP produces the information.
Many lawyers would not have a problem with this approach up to this point. Suing a John Doe defendant is not all that unusual, and typically the actual defendant is identified and made a party to the lawsuit. What the porn plaintiffs do next, however, causes concern among some attorneys. After receiving the contact information from the various subscribers, the plaintiffs’ attorneys send settlement demands to those individuals. The demands basically say, “We have concluded you downloaded this copyrighted movie on this date and time. Our client owns the copyright and did not give you permission to download it. We have not named you as a defendant in the lawsuit yet, and our client is willing to settle this matter in exchange for payment before you are named.” The payment demanded runs anywhere from $2,500 to $3,900.
People on the receiving ends of these demands face a choice that some view as extortion. Pay the amount (which is lower than the cost of mounting a defense) or be named as a defendant in a public document that accuses you of downloading porn. While being publicly named as a pornography consumer is undesirable to many, even those who do not care if their entertainment preferences are known bristle. A person might, in fact, be innocent of the downloading accusation, but it is still less expensive to agree to the settlement demand than it is to prove one’s innocence. Given the options, it is easy to see why some might label this approach as extortion. Like the old television commercial for the muffler shop: you can pay me a little now, or a lot later.
In the interests of full disclosure, I have represented and continue to represent a number of people who have received these demand letters, and I’m not sure what to think about these tactics. On the one hand, I can see the point of the potential defendants, who might feel, “I didn’t do anything wrong, but I have to shell out money I don’t have just to make this thing go away.” On the other hand, there’s no question that the porn producers are spending money to produce their wares (actors and actresses don’t appear in these films just for fun—they expect to be paid) and when people obtain those films without paying for them, the producers are losing a sale. (I do not equate the unlawful downloading of these files as theft—if I steal a book from a bookstore, the store had one fewer book to sell; when a downloader takes the file for free, the producer’s “inventory” is not reduced. At the same time, though, there is something to be said for the argument that when people check books out of a library, many of them do not later purchase the books from a bookseller.)
Pornography producers are not the only ones employing this approach to dealing with the problem of file sharing. The producers of the critically-acclaimed and award-winning films “The Hurt Locker” and “The Expendables” have also filed similar suits and made similar demands upon potential defendants.
These cases raise a number of additional interesting issues, which I’ll cover in later posts. For now, what do you think? Are the downloaders being extorted? Or do the producers have “right” on their side?