By Melissa Meinzer
The Daily Record Newswire
ST. LOUIS, MO -- An adult film producer and actress is suing hundreds of Missourians for downloading one of her movies without paying for it. She just doesn't know who they are.
She does know their Internet Protocol addresses, the identifiers the Web uses to deliver data traffic. She also knows the times at which they allegedly downloaded her video and their Internet service providers.
Now Joanna Angel, star of the film "Burning Angel -- Festival," just needs a judge to agree to use the IP addresses to identify individual defendants. That hasn't worked so far, but it hasn't stopped Angel and others from filing hundreds of thousands of suits, acts that have some defense attorneys claiming the efforts are more blackmail than valid litigation.
Angel, who owns the Los Angeles-based adult film production company Boy Racer Inc., and other adult film purveyors say they have turned to the courts for remedy against faceless downloaders, claiming their livelihoods are at risk from the theft of their work.
Filing suit against IP addresses is an emerging practice that came to the fore when the Recording Industry Association of America first started suing people for illegally downloading and sharing copyrighted music through sites like Kazaa and LimeWire.
As with the music industry suits, the porn suits are drawing criticism from attorneys and judges, who say IP addresses are increasingly shaky identifiers for actual human defendants. But the porn suits have an added element: Defendants who might fight suits over downloads of Lady Gaga may choose to settle rather than be tied publicly to the download of some of Angel's racier titles.
Angel, whose real name is Joanna Mostov, filed her suit June 11 in U.S. District Court for the Eastern District of Missouri against 525 John Does.
The plaintiff's attorneys subpoena the Internet service providers associated with the IP addresses they have, says D. Gill Sperlein, a San Francisco attorney who represents adult-film clients. The Internet service providers, he explains, can hire attorneys who submit motions to quash. In rare cases, Sperlein says, judges have appointed attorneys ad litem until the defendants are named.
If the ISP identifies the client associated with the IP address, that person can either settle with the film company or lawyer up and submit his own motion to quash. Or he can mount a defense, saying he didn't do the downloading. Then the plaintiff's attorneys will undertake forensic searches of the defendant's computer.
In the local suit, Angel alleges that the Does, who appear to all be in Missouri based on their IP addresses, illegally downloaded her video. The suit says they used the file-sharing site BitTorrent, which allows a swarm of users to download large data streams together, easing the network strain that a single person downloading would incur. That cluster technology also makes it simple to identify the IP addresses that did the downloading.
Her attorney, Alvin C. Paulson, of Belleville, Ill., did not respond to repeated requests for comment for this article. The suit says she's seeking a jury trial and damages for copyright infringement, civil conspiracy and contributory infringement. Her similar lawsuits in other venues mostly have settled.
Judges ruling in IP address-based copyright suits, and specifically in Boy Racer Inc. suits, have stated that IP addresses don't sufficiently identify defendants. Another case, brought by the producers of the movie "The Hurt Locker," targeted more than 24,000 IP addresses and was dismissed after wending its way through U.S. District Court for the District of Columbia for a year and a half. Those producers have filed a new suit in Florida.
Judge Milton I. Shadur in U.S. District Court for the Northern District of Illinois, Eastern Division, dismissed a Boy Racer Inc. case in May 2011. In that action, Boy Racer Inc. was represented by attorney John Steele, who had brought another IP address case on behalf of a porn producer before Judge Shadur just months before. Shadur -- who in his dismissal advised Steele to stay away from Las Vegas in light of his terrible luck drawing Shadur for both cases -- classified Steele's attempts to sue IP addresses instead of people as an "effort to shoot first and identify his targets later." Shadur also advised Steele to "pursue the normal path of suing an identifiable (and identified) defendant or defendants rather than a passel of 'Does.'"
Also in May, Judge Gary Brown, a magistrate judge for U.S. District Court for the Eastern District of New York, ruling in a similar suit, wrote that an IP address is no more likely to prove that a given person downloaded a pornographic film "than to say an individual who pays the telephone bill made a specific telephone call."
"It's becoming a huge burden on the courts," said Mitch Stoltz, a staff attorney focusing on intellectual property with the Electronic Frontier Foundation, a San Francisco Internet-freedom nonprofit. Stoltz calls the phenomenon of porn producers suing Does "the new asbestos litigation" because of their proliferation in courts nationwide.
Stoltz characterizes the suits as "income streams" for lawyers and says that, while artists have a right to protect themselves from copyright infringement and theft, the suits overreach their goals.
"I don't think we can assume that anyone who is a producer of creative content is being harmed" Stoltz said. "Every one of those [downloads] is a lost sale? That's just self-evidently not true."
Sperlein points out that most of the companies making adult content are small businesses with fewer than 20 employees and that in recent years they've had to make layoffs. He says his clients are clearly hurting from piracy.
"There's some truth" to Judge Brown's shoot-first metaphor, Sperlein said. If it were possible to identify downloaders more simply, he says, producers would do so. "ISPs are not going to provide information about their customers without some sort of court order or legal process, and rightfully so. I would not ever suggest it should be any other way."
Prenda Law Inc., a California firm primarily devoted to fighting online piracy, has represented Boy Racer Inc. and other adult producers. Prenda attorney Paul Duffy says IP addresses provide very specific information, and lawyers for the adult industry have a vested interest in being careful about against whom they bring legal action.
"If we went against someone that didn't do it, we'd have to pay their legal fees," he said. "Our clients would go bankrupt very quickly."
Duffy's firm has filed about 350 suits over the last three years, he says. Typically, his firm will contact a person associated with a given IP address and explain it has information indicating the address has been used in pirating copyrighted material, he says. Often the account holder will admit that he or someone in his household did it, and he will pay a settlement. The account holder rarely goes forward with a suit, Duffy says, because once lawyers have enough information to be in contact with someone, it's pretty close to a slam-dunk that he's guilty.
"Someone has to be borderline deranged to know we have all this information and not settle," he said. "Their attorneys say: 'This is dumb. You're also going to pay attorneys' fees.'"
Duffy says small-potatoes downloaders can settle for less than $1,000. But in cases where a defendant has downloaded a producer's entire catalog and is reselling the content, Duffy says, six-figure settlements aren't unheard of.
Both Duffy and Sperlein mentioned the Electronic Frontier Foundation and its efforts against their IP address-based suits. Groups that oppose their suits, they say, may call out for Internet freedom but overlook a much older legal precedent: Stealing is wrong.
"You may think piracy should be allowed or it's not nice to go against end users, but the law doesn't support that," Duffy said. And IP addresses, he says, aren't such a broad brush. "We're not suing people out of a hat. Imagine someone's robbing a bank and the robber's wearing a mask: 'Hey, you can't take my mask off. I don't want you to know who I am.'"
But Brown, the judge in the New York case, noted that technology is making it more difficult to tie IP addresses to individual people.
"While a decade ago, home wireless networks were nearly non-existent, 61 percent of U.S. homes now have wireless access," Brown wrote. "While the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper."
Clayton attorney Albert S. Watkins, at Kodner, Watkins, Kloecker, Weigley & Brison, has litigated on both sides of intellectual property and copyright disputes, though he is not involved in this particular case.
He acknowledges that Angel is being harmed by having her work viewed for free but calls suing based on IP addresses "bullying."
"An IP address which happens to be linked to an individual is being utilized as a basis for the lawsuit is in one respect prudent in that it appears to be the only method by which this adult film actress can identify people who have compromised her property rights," he said.
But, he adds, IP addresses aren't static; they change frequently. And an address only identifies a connection, not a specific person. Anyone in a household or within poaching distance of an unsecured wireless connection could be the guilty party.
Sperlein says even if the person has been completely taken advantage of, he is still responsible for someone using his Internet connection to steal content.
"Some people don't secure their Internet. I think that's irresponsible," Sperlein said. "Even if you didn't do it, Grandma, it was your unsecured Internet. You need to take better care. In the future, I hope you'll secure your Internet."
Antonio DeBlasio, of DeBlasio & Donnell in Chicago and Oak Brook, Ill., represented an Illinois defendant in a Boy Racer case in Miami in January. His client settled for an amount he declined to disclose.
"In some of these cases clients are clearly at fault," he said. "In others, their own computer may have been hacked into. You get all different flavors. I tell them up front we'll try to file a motion to quash. Litigation is very expensive," DeBlasio said. "It ends up being far more cost-effective to try to work something out, a settlement."
With so many cases, IP address litigation is likely to be around for a while, and Clayton attorney Watkins says he believes it is ripe for judicial review at the highest levels.
"It would not surprise me if this was taken up not once but on multiple occasions by the Supreme Court to hone a consistent judicial response to these situations," Watkins said. "It is imperative that the courts at some point wrestle with the process of reconciling the rules of cyberspace with the rules of evidence."
Published: Thu, Jul 5, 2012