Porn industry: Pay up or be shamed

Smut makers are targeting thousands for illegal downloads -- and urging settlements to avoid embarrassment

Published July 13, 2011 5:59PM (EDT)

Just a guess, but most people would probably prefer to not have their name forever associated with a film by the name of "Illegal Ass 2."

That's why a 19-year-old Purdue University student is fighting to keep his, or her, identity from being revealed in a copyright-infringement lawsuit brought by a major porn distributor. As the Smoking Gun recently reported, the teenager, known only as John Doe 26 in court filings, is just one of 2,000 defendants being pursued by Third Degree Films for illegally downloading its movies, including the aforementioned Sasha Grey title (which, it bears mentioning, does not actually feature illegal ass). Far more shocking is that Doe 26 is but one of more than 100,000 people nationwide who have been targeted en masse by porn producers since last year.

It's like a smuttier version of the music industry's legal battle at the start of the new millennium against online piracy. According to the Hustler formula, the appropriate porn parody title would be "This Ain't Napster XXX" -- but this ain't a parody, even though these cases center on what some legal experts consider to be an outrageous premise. As the Electronic Frontier Foundation argues on its website, "The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims."

The first step in these increasingly common cases is to file a suit to get access to the names and mailing addresses associated with various IP addresses that have illegally downloaded certain X-rated flicks. Typically, hundreds, if not thousands, of individuals are lumped together in one suit. You see, porn piracy is so prevalent that it would be far too costly and time-consuming to go after each person individually. That's why in the past the adult industry has gone after big targets like "tube sites" -- but increasingly they are choosing to cast a wider net.

Next, the pornographers' lawyers send letters to all of the suspected downloaders to notify them that they have been linked to a mass copyright-infringement suit and to offer them a settlement, usually to the tune of $2,000 to $3,000. Usually, the number grows, sometimes by $1,000, with each successive letter. For example, Evan Stone, a Texas lawyer who just so happens to share his name with a popular male porn star, sent one settlement letter that read:

Going to trial is a time-consuming and costly endeavor for both you and our client and will likely require us to conduct further discover (computer inspections, interrogatories and depositions) and move forward with additional legal proceedings (hearings, testimony, arguments, and judgment). We are confident in the strength and veracity of our client's claims against you and are prepared to adjudicate those claims in a federal trial.

He gives the option of remaining anonymous in a trial, on the condition that the recipient's attorney promptly contacts his law office. Then comes the kicker: "If you choose not to respond at all, we will have no choice but to name you as a defendant in these proceedings, serve you with a federal summons, and seek the maximum monetary judgment under the applicable laws." We're talking about a potential financial penalty of $250,000.

Matt Zimmerman, a senior staff attorney at EFF deeply involved in fighting these suits, tells me that he doesn't know of any of these porn cases actually being litigated -- because that isn't the point. The plaintiffs bet on a significant portion of the recipients simply settling. "The instinct [among letter recipients] frequently is, 'This would be really embarrassing and horrific, so I'll just pay it because how else am I going to make this go away?" He calls it a "low-investment, high-return strategy" on the part of porn attorneys. Graham Syfert, an attorney in Jacksonville, Fla., who specializes in these cases, agrees: "A lot of people get scared into settling out, because they don't want to be the poster child [for pirated porn]." He calls it "a letter-writing scheme."

Both attorneys are quick to underscore that they agree with the porn companies, that illegally downloading copyrighted content is wrong and worthy of punishment. "Our position has never been that pursuing valid copyright claims is a problem," says Zimmerman. "What we have focused on is that [these cases] are fraught with procedural errors, and it's completely unfair to the people being targeted. If they want to pursue individuals fairly, that's one thing, but this is based on cutting corners." That is especially true with the approach of suing massive groups of people all at once. "Everyone has their own story," Zimmerman explains. "You have to be able to present your own side of the case."

Indeed, Syfert has gotten calls from letter recipients with stories all over the map: Some admit that they might have downloaded the movie, while others say they have no clue how the file became associated with their IP address. As one might expect, he gets a fair share of calls from young men who are being targeted, but he also hears from some surprising parties. "One of the more common calls I get are from [middle-aged women] who have 18-year-old kids at home, or they have people who come to visit them [and use their computer]. When they target these people, they just look at where the IP goes. The subscriber is usually not the person who did it."

These cases also typically feature what's called a "lack of jurisdiction." In non-legalese, that means plaintiffs are filing suits in one state against defendants in several other states. Zimmerman says, "They're suing thousands of people who have nothing to do with the jurisdiction in which it was filed" -- not to mention, the defendants have nothing to do with one another, except for a shared taste in, say, "Who's Nailin' Paylin?" Syfert points out, "Those letters are not going to say, 'We're suing you in the wrong state and it has to be dismissed." Instead, they highlight the possibility of a simple settlement to avoid the specter of a humiliating and costly trial.

Lux Alptraum, the editor of Fleshbot, Gawker Media's sex blog, is more sympathetic to the porn industry, which has been devastated by illegal downloads. "If Doe 26 wanted their porn consumption to remain private, they should have legally acquired their materials," she tells me. Piracy is a big enough concern that several top performers have appeared in a somber PSA to warn, "If no one's willing to pay for the movies we make, they won't exist." Alptraum suspects that Doe 26 is more motivated by "shame at being exposed as a porn viewer than fear that being labeled an alleged thief will tarnish their reputation." She adds, "While I do have some sympathy for wanting one's private moments to remain private, I don't think that shame about sexuality should enable someone to seek special protections when they've committed a crime."

As for who should be worried about this trend, Syfert says, "Anybody who touches a BitTorrent, or anybody who allows BitTorrent traffic on their IP address, is a potential victim of this." The bright side is that "courts are starting to get how ridiculous this is," says Zimmerman. "So even though it's too late for lots and lots of people, there are starting to be precedents for others to follow" -- namely, that plaintiffs file individual cases so that each John and Jane Doe gets their very own day in court.

By Tracy Clark-Flory

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