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BitTorrent motion alleges legal business model targeting porn downloaders

Imagine receiving a letter from an attorney accusing you of illegally downloading a cinematic classic like, say, The Wadfather or The Man Who Blew Too Much, but offering you a chance not to be accused of this offense in public court for a few thousand bucks. Would you take the deal? Plenty of people do. However, a BitTorrent motion filed in Colorado is taking on the practice, which one attorney refers to as "business-model litigation."

"The BitTorrent lawsuits are part of a systemic effort to build a business model based on weak allegations of copyright infringement and the inducement of fear," e-mails Christina Saunders, who filed the motion, accessible below, for one of 26 John Doe defendants targeted by Patrick Collins, Inc., a company owned by the prominent porn director of the same name. (His titles include Cum Rain Cum Shine 2 and Sodomania 32.) "In my mind, they constitute as an abuse of copyright law, the judicial system, and they threaten the integrity and respect for the courts."

In response, Jason Kotzker, attorney for Patrick Collins, Inc., says he can't speak at length about the case until after there's a ruling on Saunders's motion. But "in the interim, I can tell you that peer-to-peer copyright infringement in the aggregate is a major problem for my clients," he writes via e-mail, "and like any other copyright holder, they will protect their rights when infringement is discovered."

How does the approach work? David Kerr, a Saunders colleague and copyright-law expert who represented chronically ill hobby blogger Brian Hill after he was targeted by controversial Las Vegas firm Righthaven LLC for unauthorized use of a Denver Post photos, lays things out this way.

"After being hired by, say, a production company, a law firm, or a company it hires, will go into BitTorrent networks to find out who's downloading a certain movie, and then they'll harvest IP addresses," he notes. "They might come up with a list of twenty to 20,000 addresses -- and then they slap all of them into one lawsuit and file it with a court. They say, 'We think these people are infringers, but we don't know who they are. So we want you to allow us to send subpoenas to Internet service providers like Comcast to get the subscriber information that corresponds to that IP address.

"Once the court gives the law firm permission, the attorney sends Comcast a subpoena... And after they turn over the names, the attorney sends a letter to these John Doe defendants that usually consists of something like, 'Pay us money, or we're going to sue you.' And the settlements usually range from $3,500 to $5,000 a pop."

Just because an individual's IP address came up in such a search doesn't mean he or she has actually downloaded the flick in question, Kerr stresses. "I've probably gotten 200 calls on these types of cases, and a lot of them involve open wireless. If my neighbor jumps on the wireless and downloads a movie, it's going to show up on my IP address. That's happened to clubhouses, coffeehouses, neighborhood associations. And also, IP addresses can be faked. That's called spoofing, and the number could correspond to somebody else -- which is why some seventy-year-old grandma may get a letter saying, 'You downloaded porn.'"

Of course, many people swept up in such cyber-dragnets actually did download the movie in question, and that makes them even more susceptible to coercion, Kerr believes. "Let's say you're living in the suburbs and your wife opens the letter and says, 'Why did you download Teen Anal Nightmare 6?'

"These letters are like invoices. You send out 1,000 letters, and half the people freak out and pay you -- and if they each pay you $5,000, it doesn't take an idiot to figure out that could be pretty profitable pretty quick. You could take a small, pornographic movie made for tens of thousands of dollars and potentially turn it into millions."   Kerr concedes that porn companies are entitled to copyright protection, too -- "but the question becomes, is this sort of legal mechanism the right way to enforce it, since it's so grossly unfair and there's so much potential to get the wrong people."

If such innocents refused to pay off, they're unlikely to be dragged before a judge. Kerr says actually litigating such matters is expensive, cutting into the model's profits. But the prospect of being an exception to this rule can scare people into capitulating. "One of my clients was a third-grade teacher who didn't even know how to download a movie," he recalls. "But she said, 'If I get accused of downloading this movie, it's going to make me look like a pedophile and I'm going to get fired. So I'll cough up a few thousand dollars to make it go away.'"

Saunders doesn't share particulars about her current client -- identified as John Doe 21 -- and the only detail contained in the motion is the name of the movie allegedly downloaded illegally: Gangbanger. However, she feels her filing will help move the judiciary to pour cold water on the practice.

"The majority of jurisdictions across the U.S. have dealt with these types of cases, but there is little continuity between the courts' decisions," she concedes. "For instance, the District Court in Northern California and Washington D.C. reflect both ends of the spectrum. The Court in Northern California has come down with recent rulings that are incredibly favorable to defendants. The District Court in Washington D.C., however, is a whole different story, and recent rulings reflect D.C as a place unwilling to even entertain legitimate arguments sets forth by defendants, at least until later stages of litigation.

"Colorado has yet to hear these types of cases, however, which makes it difficult, if not impossible, to accurately predict what side the court will come down on her," she concedes. "Patrick Collins Inc. v. Does 1-26 is really the first to test the waters on how the federal court in Colorado will treat these cases. As a case that will undoubtedly set precedent, I believe that there's a huge significance in successfully fighting the suit. A ruling for the plaintiff could open the doors for an increasing flood of litigation of this type in Colorado; whereas, a ruling for defendants would largely discourage these unfortunate lawsuits."

Her bottom line? "As the next few months progress, it is my hope that the court sees the case for what it really is, and stops Patrick Collins Inc., while discouraging like-minded plaintiffs from committing the same type of abuse."

Here's Saunders's motion:

Motion: Patrick Collins Inc. vs. John Does 1-26

More from our Media archive: "Reporters Without Borders letter faults Denver Post for Righthaven suit against Brian Hill."


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