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.