9.20.12 PORN SUITS

This article originally appeared in the 9.20.12 issue of Metroland.

In recent months there has been a flood of federal copyright infringement lawsuits that are having a severe impact on a lot of innocent people.  These lawsuits are a variant on the P2P suits brought by the major record companies and movie studios several years ago, a strategy that was a public relations and a financial disaster for the various companies.  These new suits are fine-tuned and efficient, and they’re brought by little-known companies that could care less about their public image.  These are porn suits.

            It works like this: a porn company hires an “investigator” to monitor bit-torrent activity for a particular movie.  The investigator collects all of the internet addresses that were downloading from a torrent over a 2-3 month period, and divvies them up by state and by the internet companies supplying service to the internet addresses.  The porn company lawyer then starts a lawsuit against all of the internet addresses in a given state that were on the torrent for a given movie.  The cases are captioned “[Porn Company] v. John Does 1-120.”  The cases all have multiple John Doe defendants, often over 100.   The porn company then gets the court’s permission to engage in early “discovery” so it can get the real names associated with the internet addresses that were identified by the investigator.  Permission is routinely granted, and the porn company subpoenas the internet companies (Time Warner, Comcast, etc.) for the names.  The internet companies then contact each of its subscribers, explaining that the subscriber is going to be named in a lawsuit for downloading a porn film (and these films have charming titles like “Anal Cum-swappers 2” and “OMG I’m Banging My Daughter’s BFF”) in 30 days.  The subscriber’s options are (1) to do nothing and be named in the lawsuit, (2) go to court to quash the subpoena, or (3) contact the porn company’s lawyer, who will demand $3000 to quietly let you out of the lawsuit, with your good name intact.

            There are hundreds of these lawsuits going on right now, affecting thousands of people.  Think about it: a porn film, which may have cost, oh, $10,000 to make, can now potentially make over a quarter-million dollars in a single lawsuit.  Now that’s a business model.

            Except there’s a couple things wrong with this picture.  First, having multiple defendants in these lawsuits is ridiculous.  The porn companies argue that “joinder” of multiple defendants is proper because all of them acted together in the same “transaction or occurrence.”  Anyone who knows how bit torrent works will tell you this is absurd, especially if we’re talking about folks who downloaded a movie months apart.  It’s also hideously unfair to those defendants who want to fight the lawsuit, to keep track of all the other defendants’ filings.  Courts are beginning to understand this, and are “severing” the lawsuits, essentially telling the porn companies they’ll have to sue the defendants one at a time.  With a $350 filing fee per lawsuit and the increased administration of, say 100 lawsuits instead of just one, an order severing the cases usually sends the porn companies slithering back to the cesspool from whence they came.

            And there’s a bigger problem.  An internet address is simply not a reliable indicator of who actually did the downloading.  The person associated with the internet address is the person who pays the internet bill.  With networks, and especially wireless networks, the person who did the downloading could be anyone: your boyfriend, your kid, your kid’s friend, your neighbor, your babysitter, a complete stranger who jacked into your network.  But in order to prove your innocence, you have to allow the lawsuit to proceed.  And that means being named in the lawsuit. 

            And that’s where the porn part comes in.  Porn is entitled to the same copyright protection as non-porn films.  But, being named in a lawsuit like this will subject you to a profound amount of humiliation—it could even ruin your life.  If you’re, say, a third-grade teacher, and you’re accused of illegally downloading “My Little Panties 2”, you’re about to become an x-third grade teacher, whether you’re guilty or not.  So your only option, if the case moves ahead, is to pay the porn company $3000.  In this light, these lawsuits are less about the vindication of copyrights and more like a court-assisted extortion racket.

            A bunch of us are in courts right now, representing our “John Doe” clients, arguing these points, and asking the courts to either sever the cases or dismiss them altogether.  Some courts have just recently started dismissing these cases, while others have allowed them to proceed.   As long as these cases are tolerated by the courts, the more porn companies will jump in and the more lawsuits will be brought against innocent people.  Be very afraid.

Paul Rapp is an intellectual property lawyer who don’t take no crap from nobody.

9.6.12 GONE THE WAY OF THE BUFFALO

GONE THE WAY OF THE BUFFALO

            Last week I got an email from a Berkshire Eagle writer who was concerned that my last article could be interpreted as saying that the Eagle ignored the story about the Berkshire blogger being ordered by a local judge not to write anything about a politician’s daughter.  I think was fairly clear in faulting the Eagle for not coming to the defense of the blogger (and the First Amendment), but I wasn’t crystal clear, and the Eagle writer’s point was well taken.  The Eagle did cover the story, that’s where I learned about it.  The Eagle’s failure was in the editorial pages.

            Moving on.  Our friends at the Future of Music Coalition are holding their incredible annual Policy Summit at Georgetown University in Washington DC November 15-17.  Thursday and Friday are the policy panels, where you can learn about where the indy music biz is heading from the people who will make it happen.  Saturday will be nuts and bolts workshops, seminars, and presentations for working musicians and other folks on the front lines of the indy music world.  I can’t recommend this conference enough, it’s brilliant, it’s fun, and it’s cheap.  And there are always parties at night.  For more info go to futureofmusic.org.

            Moving on some more.  A case came out of the California federal appeals court last week that was more than a little mind-boggling.  50 years after her death, people are still fighting about Marilyn Monroe’s stuff.  In this case, it was about her right of publicity, whether her estate could control the commercialization of her image and likeness.  The whole shebang depended on whether at the time of her untimely demise Marilyn was a citizen of California (where she breathed her last and had a house) or of New York (where she had an apartment and ran her production company).  The reason her citizenship (or as lawyers call it, her domiciliary-ness) was the big issue was because California recognizes a posthumous right of publicity to any person “whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death”.  This right continues for 70 years after the famous person croaks.  In Marilyn’s case, this right is worth a pile of money.

            New York, rather surprisingly, has no such law.  New York has a statute that bars the use of any living person’s image “for commercial purposes”, which has been determined to mean in advertising, without permission.  But New York’s law is fundamentally concerned with privacy, it doesn’t matter whether you’re famous or not, you’re entitled to not have your mug stuck up on a billboard without your OK.   And once you kick the bucket, not only are you an x-person, you don’t have a right of privacy any more!  Dead men don’t blush!   By contrast,  California’s law creates a property right in a person’s fame, and allows the famous person’s heirs to protect and exploit that fame after the famous person has passed on to that great Chateau Marmont in the sky.

            A handful of states have laws like California’s.  Indiana, for example, protects a famous person’s right of publicity for something like 100 years after the famous person ceases to be, which must make John Mellancamp’s kids happy.   Does Larry Bird have kids?  Anybody else famous from Indiana?  Buehler?

            Now, dead peoples’ stuff is traditionally a state matter.  Wills and trusts are largely controlled by state statutes, with an occasional federal issue involving things like taxes.  But really, a right of publicity, something involving famous people?  Shouldn’t there be a one-size-fits-all federal law?  The Marilyn Monroe matter puts it all in perspective: big money, big icon, and an all-or-nothing fight that hinges on where she was “domiciled” when Marilyn took that last big sleep.  A big, artificial, pointless brouhaha. 

            So what happened?  As it turns out, years ago, her estate (which was mostly left to acting coach Lee Strasberg) fought tooth and nail to establish that Marilyn was a domiciliary of New York at the time she stepped on the rainbow, in order to avoid a steep California estate tax bill.  Then California enacted the right of publicity law and made it retroactive.  Oops!  The California appeals court ruled that Marilyn’s estate couldn’t now change horses in the middle of the stream and suddenly reopen the issue of Marilyn’s status and make arguments that are exactly opposite of those made decades ago.  New York it is, and adios publicity rights!

            This was one of those great, entertaining decisions, with the court name checking Nicky Minaj, Maureen Dowd, and the Coachella festival on the first page, and then finishing with as sweet a close as you’ll ever see:

We observe that the lengthy dispute over the exploitation of Marilyn Monroe’s persona has ended in exactly the way that Monroe herself predicted more that fifty years ago: “I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.”

Paul Rapp is a frisky art and entertainment attorney who believes in the Buffalo Bills.