Claudette, a nurse in Eastern Connecticut, faces an unenviable choice:
Pay as much as $3,000 in an out of court settlement to a Miami lawfirm or take a chance that her full identify is revealed if a porn company files a lawsuit against her for illegally downloading pirated pornographic movies from the Internet.
Claudette is one of an estimated 150,000 Americans being sued or threatened with suits claiming they used Bit Torrent web sites to illegally download pirated movies. Other targets include a Florida grandmother whose grandson installed her computer and illegally downloaded movies, as well as the secretary of a Florida condo association in whose name a Wi-Fi was established for the use of all residents.
The suits grow as small movie companies are discovering that they can make more money pressuring consumers to settle out of court than they made from movies like “Nude Nuns With Big Guns -This Sister Is One Bad Mother.”
These legal actions follow the precedent set by the music industry going after those that illegally downloaded copyrighted music.
Under federal copyright laws, each dilatation could bring a $150,000 fine, but it’s the public humiliation that has most targets of the movie suits worried. Each of these suits contain hundreds or thousands of Internet addresses with a request that the judge force the Internet providers to disclose the names of the owners. They also demand the identities from providers like Comcast, Charter, and Cox, which frequently releases the names and addresses of their customers.
That is what happened in Claudette’s case. After the movie studio discovered her IP address as having downloaded one of its hard porn movies, it traced her IP address to a provider in Connecticut, who gave up her identity.
Claudette – who for obvious reasons asked that I not use her last name or her town, insists that neither she nor her husband or son downloaded any movies, legally or illegally. At my request she took the three computers in her home to a reputable expert, who after examining them, certified that none had ever been used to download bit torrents.
Claudette says that until recently she had not secured her Wi-Fi with a password, so any of her neighbors could have tapped into her Wi-Fi service and used her IP address to download anything they wanted. So could someone simply parked in her neighborhood. It’s a common issue as most Internet providers leave it up to customers to set up their own passwords. My neighbor 100 yards from me has a separate IP for his children that is unprotected, and I or any other neighbor could tap into it and no one would know whether I or his children were using it.
Claudette does not know what to do. She authorized me to send her case to the Connecticut Attorney General’s office, which urged people to protect their Wi-Fi systems with secure passwords.
That advice is of course too late for Claudette, who recently started receiving ominous phone calls.
“I was contacted by a woman claiming to be in the litigation dept of a firm in Florida, she was asking if I knew I was being named in a federal lawsuit for copy right infringement. She wanted to know if I would like to settle the case before my name is made public,” Claudette wrote me. “I contacted my IS Provider at the time of the alleged incident and they confirmed that her company requested my identity. ( my server was unsecure at the time, although I thought it was secure). I Googled her company and it is there and googled the law firm (it shows they specialize in property rights) I called the police to start a claim, just in case this is a scam.”
She doesn’t want to pay $3,000 to settle the case and she certainly doesn’t want to be sued for $150,000 where her name would be made public and possibly ruin her career. She can’t afford to hire an attorney in Florida, where the suit would be heard.
She believes that the telephone calls she received from the law firm suggesting that she settle out of court, is simply a way to coerce her to pay up but lawyers for the porn company say they have an absolute right to press their case.
Attorney Keith Lipscomb, with the Miami law firm of Lipscomb Eisenberg, PL, insists that his client Patrick Collins, Inc., says they have a strong legal case against Claudette and the 999 others named in their suit.
“Unless my client enforces its copyrights, the public will come to learn that it can infringe my client’s copyrights with impunity. When that happens, my client fears that it business will suffer more or even fail since its primary product is a movie capable of being converted into a digital media file and downloaded illegally through the internet. The way I see it, PCI’s decision to enforce its copyrights is really no different, except that PCI’s store is on-line, than Home Depot’s decision to prosecute every person who shoplifts from it,” said the lawyer whose client is better known as Elegant Angel Productions, which produces hard-core porn videos. (his complete statements are at the end of the column)
“First, by establishing that the subscriber’s IP address was used to commit the infringement, we have pled a prima facie case for copyright infringement,” he wrote me. “If Claudette wants to claim her Wi-Fi was unprotected and someone else used her IP address to download the movie, she will have to prove it. In response to our prima facie case, a Doe can defend on the basis that its wifi was hacked pleading it in an answer and affirmative defenses,” he said.
“Should that defense ever be raised in a litigation then, among other things, my clients would investigate by verifying how far the subscriber’s wifi signal carries. Most modems don’t project signals far enough to establish a good connection into a neighboring house. If it did carry a signal to another house then we would, subpoena and depose the Doe’s neighbors to ascertain whether: (a) they have a computer, (b) they have internet service, and (c) they have ever used a neighbor’s open access wifi connection. If the neighbors have a computer and internet then there is no reason to hack.”
“Here is the bottom line, however, merely because a Doe could possibly prove that its wifi was hacked and that it was not the infringer does not make my client’s copyright enforcement campaign overbroad, unlawful or unethical. To underscore the point, let me pose the question back to you: What would you do if your revenue model was pay per download and your articles were being illegally downloaded on the scale that my client’s digital movies are being illegally downloaded? I think you would do the same thing. I know I would and I am personally very proud to be defending my client’s copyrights to the best of my ability.”
Attorney Anita Ramasastry, a D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Member of its Law Technology and Arts Group, in a column for the Verdict Internet site this month said these suits are a recent phenomenon.
“This strategy was pioneered last year by the U.S. Copyright Group, a business which represents independent-film producers and which was formed explicitly to make money by suing downloaders. It works for a number of independent film makers and has handled high-profile films such as the The Hurt Locker and The Expendables. The group uses software to monitor illegal downloading activity. The group’s strategy – of listing only IP addresses in litigation, but then seeking names and street addresses in court — is now being mimicked by individual production companies, as well. (Courts may, however, give customers some time to fight the release of their personal subscriber data when it is sought from an ISP.),” she wrote.
It does not appear that any of these mass movie copyright suits have yet succeeded in huge court judgments, only in out-of-court settlements. Defense lawyers in many cases have successfully claimed that the suits are unfair because they lump thousands of people from one end of the country to another into one case, forcing defendants to spend thousands of dollars protecting themselves. They are urging judges to force the movie companies to bring individual cases instead of the mass litigations.
Of course the lack of $150,000 individual judgments is not comforting for Claudette and other respectable people who believe their careers or reputations would be tarnished just by the disclosure of their names.
If you are named in one of these suits, you can contact the Electronic Frontier Foundation for possible assistance.
The best approach is to not download pirated movies and make sure everyone who uses your Wi-Fi understands that. The risks are too high. And of course password protect your Wi-Fi, because your financial information can also be accessed through an open IP.
Anita Ramasastry, a Justia columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Member of its Law Technology and Arts Group. she wrote in http://verdict.justia.com/2011/07/06/recent-lawsuits-allege-illegal-downloading-of-x-rated-films-and-sexploitation-b-movies/
Remember the plight of the Palm Beach County grandmother, and of a condo association that reportedly offered free wireless Internet access to its members. After someone downloaded a film, the association secretary, whose name was on the monthly Internet bill, received a letter demanding $3,000.
Still, even though these suits may be on their way to becoming procedurally fairer, that may take a while, and the smart approach is simply not to download movies illegally in the first place; to make clear to others that your computer is not to be used for that purpose; and to keep your wireless service locked. Otherwise, you may find that a neighbor, babysitter, or even one of your own kids may be triggering monetary liability that will be associated with you via your IP address.