Every Inch Counts: Porn Filesharing Lawsuits Crest 30K Defendants

Summary:New lawsuits emerging from the porn industry could also result in mass shakedowns of file sharers of mainstream video content.

America's pornography business has been cast as an industry quick to co-opt new technologies to keep its profit margins larger than the average guy's. However, when DVD sales plummeted by 50% in 2009 and torrent sites emerged as a factor in limp revenues, mainstream porn faced a new kind of shrinkage: porn needed a little blue pill, or a bailout. So, what new hot tech innovation is set to get porn back in the black?

Holy huge file sharing lawsuits, Batman!

Last Monday saw numbers skyrocket in porn's war against piracy and torrent sites when four porn companies filed suits in California to target 9,055 alleged file sharers. That was a week after director Axel Braun filed in West Virginia to sue 7,098 alleged pirates for one film, Batman XXX: A Porn Parody.

This is not to be confused with the seven West Virginia suits filed in late September, suing 5,469. That was just before three porn companies came together to file against 1,100 alleged torrent pirates in Chicago. None of these were filed in conjunction with Hustler/Larry Flynt Production's now-total of four lawsuits for This Ain't Avatar XXX, with its own defendant total of 7164.

Let me be the first girl to look at the exploding number of defendants and admit that I've truly never seen something so big. Neither has the Electronic Frontier Foundation, whose Cindy Cohn told me by phone that the sheer numbers in each filing were themselves unprecedented -- whereas, "The RIAA sued around 20,000 people over a number of years; this is an order of magnitude bigger."

Braun, like many of his co-plaintiffs, sees no reason to hold anything back in order to do what he sees as protecting his investments. Via email he told me, "F**k 'em all. I'm suing everybody."

No one wants to be named and shamed over alleged theft of anything called Danielle Staub Raw or Relax He's My Stepdad 2. However, Batman XXX was a cult hit. In evidence, the YouTube trailer (safe for work):

Triple-X bat-campiness notwithstanding, an avalanche of lawsuits soon to exceed 30,000 defendants filed in less than two months suggests the emergence of a cottage industry – one that raises a lot of serious questions.

The porno lawsuit gold rush: Super size my DMCA

It's become plain that mass filings over piracy are now part of the economic equation for adult companies. In the middle of lawsuit filings, a select group of adult industry reps (and their lawyers) met in Arizona at an exclusive Content Protection Retreat. Embracing the abbreviation of CPR as a secondary meaning, it was positioned as, "…all about breathing new life into something that might otherwise die. In this case, what we’re trying to 'resuscitate' is nothing less than the profitability of the adult entertainment industry."

Aside from Hustler's legal team, three entities emerged as porn's white-knight lawsuit filing factories: Media Copyright Group, Copyright Enforcement Group and Adult Copyright Company had offers that Big Porn just couldn’t refuse. Until then, going after alleged illegal downloaders was a process that was costly, timely and complicated, requiring experienced IP legal teams and software voodoo that most adult enterprises simply didn't understand.

Sensing a gold rush, companies like ACC offer a one-stop shop where porn copyright holders are offered a contingency-based engagement: no money down, "no expense to rights holders," they do all the work. ACC alone now represents 8 cases; MCC has filed six suits and claims a dozen clients. Here, Big Porn just signs the bottom line and waits, sits back, enjoys the beautiful stock photography on the copyright lawsuit farmers' websites, and ostensibly collect the spoils when "infringers pay for their theft."

It's not just the "making them pay" part that worries the EFF, who is working on a defendant brief in one of the cases. The EFF has long been against lumping thousands of defendants together in single complaints, and Cindy Cohn reminded me that they'd worked on RIAA claims only to watch the music industry abandon the practice of monetization based on suing fans because ultimately, "it didn't work."

Cohn tells me, "Now we have a situation where they're taking the idea of mass infringement and turning it into a business model for bottom feeders." Indicating the legal front end of the porn suits, Cohn sees the copyright teams "cutting corners" and casts doubt on whether the lawyers are experienced IP attorneys.

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Suing and shaming: A shakedown, or just happy to see me?

The ones who'll ultimately suffer in this scenario aren’t the penny-poor pornographers, but the holders of IP addresses that get netted in proprietary software (like GuardaLey) used by firms to generate lists of defendants. EFF's Eva Galperin points out that new "Internet intelligence, security and monetization company" ContentX Technologies LLC "is a company that tracks down individuals who download adult content illegally, and then converts them to paying customers."

The good news is that this is an innovative way of getting around the copyright troll problem. The bad news is that the software is closed source, proprietary, and has not undergone peer review, and that the potential privacy risks of keeping a database of every person who has tried to download copyrighted porn are really quite immense."

Meanwhile, cases name 1,000 people in one location, but in reality the people are from all over, making it harder for defendants to challenge.

Cohn tells me that, "lumping people together also makes it difficult for a court to think of people separately -- and due process is supposed to prevent this misjoinder." (Misjoinder is the legal term for the inclusion of parties in a single legal action.)

Then there's the nature of the material itself. The porn industry is not being shy about using shame over its own product as a threat, and this is particularly troubling. While the defendants initially coming up as "John Does" in filing, companies like Hustler/LFP are working the "name and shame" angle and asked a U.S. District Judge to green light revealing the identities of Does from Internet providers. Another adult company preparing to expose the identities of defendants is Third World Media. Once they are identified, they are more likely to settle whether they are guilty or not because of the content.

For instance, someone in the military who is accused of downloading gay porn, or those who could lose their jobs -- such as police or schoolteachers -- could be frightened into paying off porn studios simply because the mere accusation could cause so much trouble in their lives. Cohn explains, "The process of identifying Does in this instance increases pressure to settle against legitimate defenses and makes it more of a shakedown."

When I mention that some of the copyright websites conveniently have "pay now" options encouraging alleged – or simply potential – downloaders to give money immediately and avoid all that nasty, time-consuming "due process" Cohn expresses another concern. "My worry is that over time we'll see more of these scams, where copycats don't do legal legwork and scam people into paying who just don’t know better."

And just how much can that mean to cash-strapped pornographers? According to Dallas attorney Evan Stone (no relation to adult performer Evan Stone), who is handling a number of bittorrent lawsuits including Hustler/LFP, "We usually ask people for $1,500 to settle out of court.

Statutory damages begin at $750 and go up to $150,000 per work infringed." Stone also works on a contingency basis so there's no cost to studios, and says that joining all the defendants together in one lawsuit can be done for only a $350 filing fee. In an Xbiz interview (link NSFW) he states, "The innocent infringer? We don't see it happen."

If Big Porn is Batman, then Operation Payback is The Joker

When your business model balances on controlling copies and distribution, it's got to be a tough, er, nut to swallow to find yourself in the era of the open Internet: computers, after all, are made to copy files. LFP's President Michael Klein says (link NSFW) that pirating titles like Hustler's Barely Teenage Schoolgirls #6 harms everyone at Hustler: "Theft of content takes away from the company, performers, studio personnel and make-up artists."

Unlike book publishing, there is no royalty system in pornography on sales of individual titles to artists and performers. But Axel Braun, he of the Batman XXX, agrees without hesitation and tells me it's actually about protecting everyone.

He explains, "I'm simply trying to protect my investment, my brand, the quality of my product, the people who work for me, and even the consumer. Illegal downloads have a tremendous impact on the state of the Adult industry.

Slumping DVD sales reflect on lower budgets, which means less days of work for the crew, and lower rates. I want the effort and the money I put in every movie I make to show in the quality of my product...when people download them from a torrent site they get a low-quality version of it. The colors are wrong, there's artifacts and pixelation, and on top of that, they expose themselves to malware and spyware. Plus, they steal money from me, and I don't like it."

Not everyone has liked the name-and-shame tactics Big Porn has been using. When Hustler threatened to name Doe defendants two weeks ago, "Anonymous" –- a collection of hackers who have formed their own vigilante cell –- launched an attack on Hustler.com as part of their "Operation Payback" campaign. Caught by surprise, the website was taken down in a DDoS attack for a few hours, but it did not deter Hustler.

The idea of online vigilantes doesn't deter Axel Braun either. He confides, "I'm just a businessman who is using the judicial system to prevent thieves from stealing from him, and if anybody wants to "attack" my site, I will get my lawyers to go after them too. F**k it, I might even call Batman."

Topics: Enterprise Software, CXO, Legal, Piracy, Security

About

Ms. Violet Blue (tinynibbles.com, @violetblue) is a freelance investigative reporter on hacking and cybercrime at Zero Day/ZDNet, CNET and CBS News, as well as a noted sex columnist. She has made regular appearances on CNN and The Oprah Winfrey Show and is regularly interviewed, quoted, and featured in a variety of publications that inclu... Full Bio

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