If you believe the rhetoric coming from certain organizations, the illegal downloading of copyrighted material will be the death of the entertainment industry. One MPAA official once said that technology that allowed unauthorized copying of movies “is to the American film producer and the American public as the Boston strangler is to a woman home alone.” Of course, that was in reference to the VCR in 1982, but the entertainment industry has basically the same view of modern file-sharing technology.
That being the case, various entertainment companies have spent a lot of time and money on lawsuits against those who download their content illegally. You’ve probably heard the stories about the RIAA or the MPAA suing little old ladies or kids or large groups of people all at once for the crime of downloading copyrighted material. There have been dozens of such suits over the last few years.
Interestingly, one wing of the entertainment industry that is particularly protective of its intellectual property is the adult film industry. The porn industry has long been a driving force in the adoptions of new kinds of technology. Prefer VHS over Betamax? So did the porn industry, and that’s why VHS won. Porn sites also pioneered online payment systems and certain features of embedded video that have only just recently made their way to more mainstream video sites like YouTube. They’re even ahead of the game in terms of website security. Yet, when it comes to file-sharing technology, the porn industry is every bit as sue-happy as the MPAA.
Now it looks like one New York judge has had enough. Earlier this week, New York Magistrate Judge Gary R. Brown submitted an Order & Report & Recommendation concerning four lawsuits filed by three porn studios against a total of 63 defendants. Judge Brown savagely critiqued some of the legal maneuvering done in these kinds of suits, and even proposed banning some of tricks entertainment companies use when suing people.
In the 26-page document, which is embedded below, Judge Brown called the cases “part of a nationwide blizzard” of lawsuits brought by “purveyors of pornographic films” over copyright infringement. He decried many of the “abusive litigation tactics the plaintiffs use in the cases – such as filing a single suit against multiple defendants in order to avoid the $350-per suit filing fee and attempting to extort settlements out of people who may be innocent.
The whole document is worth a read, but here are some of the highlights. On the fact that the plaintiffs are treating clearly individual instances of infringement as a single case:
The factual defenses presented are vastly different and highly individualized. One movant – John Doe #16 – has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. … John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. John Doe #10 represents that downloading a copy of this film is contrary to her “religious, moral, ethical and personal views.” … Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.
On the fact that the person who pays for internet service may not be the guilty party:
The assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time. An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones.
In conclusion, Judge Brown recommended that one of the suits be dismissed in its entirety, and that the other three be restricted only to a single defendant – the defendant listed as “John Doe 1” in each case. He further recommended that plaintiffs be ordered to file any future actions as individual complaints, rather than mass suits against multiple defendants, “so as to avoid unfair outcomes, improper joinder and waste of judicial resources, and to ensure the proper payment of filing fees.”Fight Copyright Trolls]