By now, you’ve probably heard about the “porn downloading lawsuit,” aka “copyright troll lawsuit” epidemic that’s hit North America. To date, more than 200,000 people in the United States alone have been sued for infringing federal and state copyright laws by downloading various “adult themed” movies from Peer-2-Peer (P2P) BitTorrent websites.
Though contrary to accusations, not everyone accused of downloading adult movies is a copyright infringer. In an effort to avoid a porn downloading lawsuit appear on their proverbial “permanent record,” though, many have opted to pay settlement fees instead of fighting back. The decision is often fueled by scary language sometimes used in pre-settlement letters, which suggest ones’ name may be publicly broadcast if the issue reaches lawsuit stage; which is a shame, since the plaintiffs’ cases in many of these copyright troll lawsuits, actually aren’t a sure thing.
How Porn Downloading Lawsuit Sting Operations Usually Work
To put it cynically, copyright troll lawsuits are an easy way for copyright holders to rake in money. Yes, illegally downloading copyrighted material is wrong, but intimidating innocent citizens with the threat of a costly lawsuit (especially with questionable evidence) is another story – and many say the latter is what’s happening in some porn downloading lawsuits.
How does it work? Simple: a law firm or entity, acting on behalf of their plaintiff, hires Internet techs that use IP-sniffing software to identify alleged porn-downloading perpetrators. This can be done by gaining access to a torrent site under the pretense of acquiring the necessary data. Then a spreadsheet of alleged infringers is compiled, and someone scours a public database in an effort to match IP address with provider. The spreadsheet is then turned into a .pdf and attached to a discovery demand – a demand which asks the judge to subpoena the ISPs for real-world names and addresses.
A pre-settlement offer is usually sent at this juncture; the letter is usually written in such a way that makes it seem like the only reasonable option is settling – even if the true infringer was your bandwidth-stealing neighbor.
At this point, many people simply pay the fine and keep on trucking – after all, who wants their name publicly associated with a porn downloading lawsuit. But those who ignore the letters often find themselves on the defendant roll-call of a mass joinder, John Doe lawsuit.
After receiving notification of the lawsuit, most people cave and settle right there; which is a shame, because many of these porn downloading lawsuits have very weak legal legs.
Current United States Copyright Infringement Laws
The recovery allowed in most tort lawsuits usually corresponds to actual damages. For example, in online defamation lawsuits, people must prove how much they lost as a result of the offending statement and the judge awards damages based on that figure.
But copyright law is different. There is a statutory minimum ($2,000) and maximum ($150,000). That’s why lawyers for porn downloading lawsuit plaintiffs usually use the eye-popping $150,000 figure in their pre-settlement letters.
But according to the law, $150,000 fines are meant to be reserved for the most egregious infringements. (Think guy who has an industrial-sized DVD-copying software operation.)
This begs the question: if one of these copyright troll lawsuits were to actually see the inside of a court room, would a judge find that the downloading of one adult entertainment title for presumably personal use is “egregious” behavior? Would home viewing of one copy constitute $150,000 worth of infringement damage for a movie that most likely sells for $19.95? Probably not, but stranger things have happened.
Now, U.S. copyright law does allow for third party liability, which is something the lawsuit letters often highlight. But when you take a good look at the actual third-party statues, in conjunction with the facts, it becomes clear that plaintiff’s claims of infringement could be strongly argued against.
The Legality of What Plaintiff’s Usually Claim in Porn Downloading Lawsuits
Under United States law, there are three types of copyright infringement: direct liability, contributory liability, and vicarious liability.
Direct liability is when you commit the act yourself. Contributory liability is when you “intentionally induce or encourage direct infringement.” Vicarious liability is when you profit from the direct infringement of another and do nothing to stop it.
Direct, contributory and vicarious copyright infringement all require that the person being charged must have knowledge that the infringement is taking place. An un-tech-savvy person who, let’s say, lives in an apartment complex and fails to lock down their wireless account probably has no idea when one of their neighbors logs on to their unprotected WiFi to download some video with a title that usually consists of adjective + body part + cuties + number. Moreover, no state or federal laws exist that say you MUST password-protect your wireless account. So when the troll lawyers argue that they can still sue you using third party liability statues in US law, there is a possibility that they’re stretching the truth.
WiFi, Spoofing and BitTorrent Technology: Causes For Quashing and Reasonable Doubt
The Internet Protocol Masquerade
One of the reasons law enforcement authorities have so much trouble catching hackers is because skilled tech-heads know how to disguise – or “spoof” – IP and MAC addresses. That means someone could download porn using their own WiFi, but make it look like the activity was happening on your IP address.
And since most porn companies use software that relies on IP addresses to pinpoint their targets, reasonable doubt is present ten-fold. With the right judge — who knows what could happen.
Swarm !== Participating In the Same Transaction
BitTorrent technology is complicated. But a cursory examination of how it works reveals another basis for porn downloading lawsuit dismissal.
There are a slew of fun laws in American jurisprudence that deal with joining parties together when they have all acted in the same transaction or occurrence, or at least have some relation to each other that would allow for their inclusion in a lawsuit.
To put it simply, BitTorrent technology breaks down a movie into thousands of tiny pieces. A person has to download all of the pieces before the movie can be viewed. When you are in the process of downloading the pieces, you’re considered part of the downloading “swarm,” which means you’re both sharing pieces you already have with others in the swarm, while at the same time downloading the elements you need. You can leave and rejoin the swarm at any time, and the swarm always changes.
The nature of a swarm is important in porn downloading lawsuits. The cases are often filed as mass joinders under the premise that anyone who downloaded the movie named in the lawsuit acted in concert, and the plaintiffs assume that all must have participated in the same swarm at the same time.
But in reality, there’s no real way to tell if people participated in a swarm at the same time, thereby bringing into question the validity of the mass joinder.
Judges Also Dislike Lawsuits That Use The Law For Personal Pecuniary Gain
The whole point of the lawsuit, and the reason why they are deemed “copyright trolls” is because of the corners it cuts, its desecration of the judicial process, and the a whole bunch of other words that my mother would probably wash my mouth out with soap for using. But in all seriousness, when you examine it is impossible to not at least question the motives in the way the lawsuits are being filed.
Improper jurisdiction is another issue which results in the dismissal of porn downloading cases. In addition, federal judges are starting to take notice of the predatory nature of many porn downloading lawsuits. Judge A. Gitney may have said in best when he opined that “Whenever the suggestion of a ruling on the merits of the claims appears on the horizon, the plaintiffs drop the John Doe…[avoiding]…an actual decision on the merits.”
If you’ve been accused of downloading porn illegally and want to fight the charges, you can. Don’t be fooled by the letters that insist the cost of hiring legal counsel will surpass the amount of the settlement offer. Tech-savvy attorneys well versed in intellectual property law will know what to do to get the matter taken care of quickly and confidentially.
Contact the Kelly Law Firm today if a copyright troll lawsuit has landed in your lap. The sooner you have a professional handle the situation, the sooner the headache goes away.