How porno piracy cases are breaking copyright ground

By Alison Frankel
September 9, 2011

Imagine, for a moment, that some errant instinct prompted you to want to watch an independent film called Danielle Staub Raw, which features the erstwhile Real Housewife of New Jersey engaged in certain X-rated acts. You probably wouldn’t want anyone to know that you were spending your free time watching Danielle Staub Raw. And you might prefer not paying for the movie. So it’s not too tough to discern the motivations of the more than 5,000 people who illegally downloaded the film anonymously through file-sharing services like BitTorrent.

Last October, On the Cheap, the California company that owns rights to Danielle Staub Raw, sued those 5,000 illegal downloaders in San Francisco federal court. In filing the suit, On the Cheap joined what has become a swell of litigation between porn movie producers and alleged porno pirates. According to an anonymously-administered website that tracks the data, there have been more than 340 suits claiming video piracy (some assert illegal downloading of non-porn films). The twist in more than 300 of the suits is that the movie producers don’t know the identities of the downloaders. So rather than sue named defendants, they file complaints against John Doe downloaders — sometimes naming thousands of anonymous defendants in a single complaint, as in On the Cheap’s suit against Danielle Staub fans.

That tactic has put the porn piracy cases on the cutting edge of copyright law in the digital era. Movie producers have asked courts to issue subpoenas demanding information from Internet service providers that permits them to identify the alleged illegal downloaders. Some ISPs have fought the subpoenas, but in other cases, judges have authorized the demands for information. In On the Cheap’s Staub suit, for instance, magistrate judge Bernard Zimmerman ordered expedited discovery last February. On the Cheap and its lawyer, Ira Siegel of The Law Offices of Ira M. Siegel, reached settlements with about 70 Does without ever naming them in the litigation. Again, it’s not too tough to figure out why the accused pirates settle. Statutory damages can be as much as $150,000. If you received a letter threatening to identify you publicly as an illegal downloader of Danielle Staub Raw in a court that might be hundreds or thousands of miles from your home, you might well be inclined to agree to pay a few thousand dollars to make the whole embarrassing, inconvenient mess go away.

That’s why the Electronic Frontier Foundation has entered the porn piracy fray. According to EFF intellectual property director Corynne McSherry, the cases raise serious due process issues. Plaintiffs shouldn’t be permitted to join thousands of unnamed defendants in a single complaint, McSherry said, particularly when the movie producers’ motive seems to be simply to force settlements. “These cases are about using the judicial process to identify people and extract settlements,” she said. “People are being sued without an opportunity to defend themselves.That does fundamental harm to due process.” McSherry said there’s a clear distinction between the porn piracy cases and the illegal music downloading suits that spawned the Doe defendant trend; in the music cases, she said, the Recording Industry Association of America was using litigation for policy purposes. According to McSherry, the porn producers are suing thousands of defendants at a time in a pure money play. For the porn producers, she asserted, the Doe litigation is, in and of itself, a business model.

The foundation has entered about 10 porno piracy cases, some as an amicus, some as court-appointed counsel for the Doe defendants. And according to McSherry, courts are increasingly likely to agree with EFF that movie producers can’t join thousands of Doe defendants in a single case. On the Cheap’s Danielle Staub Raw suit, in which EFF is an amicus, is the most recent instance of a federal judge dismissing Does by the boatload.

“Plaintiff, well aware of the difficulties of out-of-state and out-of-district defendants would face if forced to appear in San Francisco, has nonetheless sent demands which apparently inform them that they have been sued in this district,” Judge Zimmerman wrote in a September 6 order. “The defendants are left with a decision to either accept the plaintiff’s demand or incur significant expense to defend themselves in San Francisco or hire an attorney to do so. This does not comport with the ‘principles of fundamental fairness.’” Judge Zimmerman severed all but one of the Doe defendants from On the Cheap’s case. (Ira Siegel, who represents On the Cheap, told me he wouldn’t comment on the case or the porn piracy litigation.)

“The producers say, ‘It’s too expensive for us to enforce our rights individually,’” said McSherry. “We say that’s just wrong. That’s not a precedent we should be supporting.” Federal judges seem to have gotten the message, McSherry said, but the latest trend among movie producers is to file state court suits asking for subpoenas to identify illegal downloaders or claiming state-law trademark infringement.

I asked her if EFF has any qualms about standing up for the rights of porno pirates. She said that more than a few of the Doe defendants aren’t illegal downloaders at all, but landlords whose tenants may have pirated videos, or people whose WiFi was hijacked. “We care about the rights of people who are caught up in this,” she said.

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