Opinion

Alison Frankel

Porn copyright troll targets strike back in new class action

By Alison Frankel
July 6, 2012

Jennifer Barker of Louisville, Kentucky, insists she has never downloaded a pornographic movie from the Internet and has certainly never infringed anyone’s copyright through illegal porn downloading. So you can imagine her dismay when, according to a complaint filed Thursday by her lawyers at Henry & Associates, Barker was contacted in May by a woman asking her to settle an illegal porn-downloading claim that had been asserted against her in Florida. Barker was told that Internet records indicated she had downloaded several titles from the website X-Art, and that if she didn’t pay up she’d be subject to hundreds of thousands of dollars in judgments and would be publicly revealed as a porn downloader. When Barker refused, according to the complaint, she was harassed about the supposed claim, with messages left on her personal and work phones.

Barker is one of tens of thousands of people who’ve received settlement demands from porn movie producers and their lawyers in the last few years. As I’ve reported here, these piracy cases have become a flash point in copyright litigation. No one disputes the scourge of illegal downloading, but public interest advocates assert that piracy cases in which porn producers and their lawyers sue thousands of unknown downloaders at a time are more akin to extortion than litigation. The copyright holders aren’t really interested in protecting their rights, according to Public Citizen and the Electronic Frontier Foundation. They’re interested in scaring accused downloaders into forking over a couple thousand dollars apiece to make the accusations go away. The public interest groups assert that even people like Barker, who say they never downloaded illegal porn, often assume it’s cheaper and easier to pay the settlement than to hire a lawyer and defend the litigation.

Barker did better than that, however. With Thursday’s filing, she became one of a handful of accused porn downloaders to go on offense against her attackers. She brought class action fraud, defamation and racketeering claims in federal court in Louisville on behalf of everyone who has been “subjected to the unlawful extortion attempts” of the defendants – Patrick Collins, Inc, Malibu Media, Raw Films, K-Beech and Third Degree Films – since 2007.

“In effect, the pornography purveyors have developed a new business model using the court system to extort money from individuals who are merely identified by IP address and with no proof whatsoever that they downloaded copyrighted materials from the Internet,” the complaint said. “By extorting settlements of $1,000-$5,000 the pornography purveyors have developed a model whereby they can unlawfully gain more money than they can by selling access to their pornographic videos.” (Barker counsel Kenneth Henry didn’t return my call.)

But if the progress of a similar class action, filed in 2010 in federal court in Boston, is a guide, Barker and her lawyers have quite a slog ahead of them. The Massachusetts case was filed on behalf of about 4,600 people hit with demand letters for illegally downloading a German film called A Far Cry. The defendants – the film producer, the law firm that sent out the demand letters and a German company that identified alleged infringers – raised all kinds of defenses in their motions to dismiss, including an assertion that prelitigation demands are protected by the First Amendment and that the name plaintiff didn’t have standing because he’d suffered no injury. In March, U.S. District Judge George O’Toole adopted the recommendations of U.S. Magistrate Judge Jennifer Boal and narrowed the case. The judges rejected the First Amendment defense but said that only plaintiffs who had incurred legal fees (or presumably paid settlements) in connection with the demand letter had standing to bring claims; the mere threat of litigation didn’t give a plaintiff standing to sue. All claims against the German company that identified infringers were tossed for lack of jurisdiction. The plaintiffs’ conspiracy and fraudulent misrepresentation claims stayed alive, but RICO, malicious prosecution, copyright misuse and fraud-on-the-court accusations were tossed.

Class counsel Daniel Booth of Booth Sweet, who moved to certify a class last month, told me he believes the court’s ruling on standing still leaves thousands of plaintiffs in the case. He also said that under the plaintiffs’ theory of the case, class members don’t have to have been wrongfully accused to have claims. It’s enough for them to be able to show that the movie producer and its lawyers did not actually intend to pursue the litigation they threatened in the demand letters, Booth said. “If what they’re saying is, ‘We’re going to sue you’ and they don’t actually intend to sue, it’s a lie,” he said. “It’s a fraud.” (The studio did sue some of the alleged illegal downloaders by name after the class action was filed, Booth said, but didn’t actively litigate cases in which they didn’t obtain default judgments.)

Like the public interest lawyers involved in the porn piracy litigation, Booth said he’s convinced that thousands of innocent people wrongfully identified as illegal downloaders have settled “because they don’t want to be a poster child” for downloading porn. “The number of improprieties in these cases is so shocking,” Booth said. (I left messages for defense counsel in the class action, Kara Thorvaldsen of Wilson Elser Moskowitz Edelman & Dicker and Harvey Weiner of Peabody & Arnold. Thorvaldsen didn’t call back and Weiner was on vacation and unavailable.)

Two other class actions (here and here) have been filed this year in federal court in San Francisco, accusing Hard Drive Productions of attempting to extort settlements from accused illegal downloaders. Both cases are in relatively early stages, although one has survived a defense motion to dismiss. In those cases, the plaintiffs are represented by Murphy Pearson Bradley & Feeney and Hard Drive by Prenda Law.

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