Fifty Shades of Shady: Copyright Piracy, Copyright Trolls, and the Bellwether Porn Trial
If you've ve been living under a rock, Fifty Shades of Grey was the latest world craze in the Female friendly pulp romance novel after the Twilight phenomenon. Twilight's hook was a romantic vampire, leading to a world Vampire craze. German to this blog is that in this craze the romantic protagonist is not a vampire, but a sex-obsessed but romantic and loveable S & M addict (Sadomasochism). Apparently the book was so irresistable that new Fifty Shaeds book have flown off shelves and suddenly vidoes with explicit sexual content, notable S&M video with pulp plot and intimate explicit sex scenes aimed at women, has become somewhat legitimate. Rumors of a baby boom and other signs of world peace have flared up, including a new market for what is commonly called porn. Many men have never touched the book but thanked a higher power for seemingly universal consumption of this, uh, novel. In fact it is likely this phenomenon that spurred said blogger's interest and the approval to write it.
THE COPYRIGHT LAW ON SEXUALLY EXPLICIT MATERIAL
Copyright law is designed to promote and give incentives to create new copyrightable material and make a market for the holders of copyrights. In Ashcroft v. ACLU, No. 03-0218 (2004) the Supreme Court struck down Congressional laws aimed at regulating access to sexually explicit internet films, holding that the laws did not do enough to protect the right of adults to consensually view explicit sex scenes. In other words, adults have the right to access and view x-rated films online or buy DVD's through the mail. Therefore, producers of sexually explicit material have the right to copyright and distribute this material over the internet. Thus, the widespread practice of free downloading of porn is illegal under the Copyright Act and could subject perpetrators to substantial civil penalties, and possibly criminal prosecution. Simply put, as a matter of federal law, it is wrong. But a staggering number of people are doing it, along with music and mainstream movies, which greatly dampens respect for copyright law and breeds a culture of the ridiculous belief that because "information wants to be free," so should downloading of creative material, including sexually explicit material, also be free. But in my opinion it is stealing. According to reports, illegal downloading is a major economic problem for the adult video industry.
CNBC recently published an interesting series of articles about the adult internet and film business. It seems speculative (virtually none of the business involves public corporations) but it estimated this loose confederation of studios and websites as a $14 billion industry. A brief look at the dockets shows powerhouse Biglaw firms, with the whitest of white shoe reputations representing the megaproducers in big money cases. However, there is paltry writing in the Biglaw blogosphere about piracy of adult video, which involves smaller high volume instances of stealing by mostly individuals.
The reality is that the volume is so high in the aggregate that piracy overwhelms the business, and Biglaw cannot make money off of it. So they must look elsewhere. Since the adult industry is embattled in the first place, it would behoove it to hire lawyers and inform them to hew carefully to a strategic plan that carefully protects their reputation. Many lawyers either don't know or aren't mature enough to do that on their own.
THE ADULT EMPIRE STRIKES BACK AND GETS A LEGAL AND PR BACKLASH
Some minority of big money producers of adult content such as "Pink Visual" have taken action to go after illegal downloading through copyright enforcement means by obtaining ISP addresses associated with illegal downloading and filing volumes of "John Doe" lawsuits. These actions seem to be accompanied by a threatening lawyer's "nastygram" warning that it will shame the recipient by putting its name on the lawsuilt lest the ISP address owner pay a large settlement. Not surprisingly, these clumsy tactics have created a backlash as old ladies whose Wi-Fi has been trespassed get scary and abusive threats when they check their mail. One feisty allegedly innocent woman has fought back filing her own class action lawsuit against the alleged "copyright trolls," as they are called by pro-downloading media. Named plaintiff Jennifer Barker of Kentucky sued four California-based companies: Patrick Collins Inc., Malibu Media, K-Beech, and Third Degree Films, and London-based Raw Films in Barker and Hutchinson v. Patrick Collins Inc. et al. KYWD 3:12-cv-00372 (W.D.KY. filed July 7, 2012).
Barker claims the porn distributors have "a new business model" which uses the court system to "extort" money from users of file-sharing sites who have never downloaded their videos.
Forbes published an article highlighting the feats of an apparently proud attorney who allegedly self -describes as a "copyright troll" proclaiming that he has made millions writing these letters and gobbling up settlement money. Recently, the same lawyer was sued for "extortion" tactics in Liuxia Wong v. Hard Drive Productions, Inc. 4:12-cv-00469 (N.D. Cal. filed Jan. 30, 2012). The case has already settled.
More ominously, judges have angrily thrown out such piracy lawsuits, swayed by concern that little effort has been done to ethically do the footwork necessary to weed out innocent victims of Wi-Fi trespass or hacking from the overwhelmingly guilty horde of young males committing piracy. See “A new record: 9,729 P2P porn pushers sued at once” (http://arstechnica.com/tech-policy/2010/11/a-new-record-9729-p2p-porn-pushers-sued-at-once/). Supposedly, in one instance, a particular anti-piracy lawyer filed 200,000 lawsuits against Bittorrent users. These chickens are coming to roost, however, as a judge for the District Court for the Eastern District of Pennsylvania ordered a bellwether trial to fight such cases in 2013. Forty-eight of the cases referred to the judge were named either Malibu Media, Inc. v. John Does or Patrick Collins, Inc. v. John Does. The judge selected five of the defendants for the bellwether trial, which will be going forward soon. This trial will set a huge precedent for the winner: either the adult industry or the free information supporters.
The anti-piracy attorney mentioned above defends the scattershot tactics by saying that recurring fact patterns emerge from these cases defending the tactics. Of course they do. Innocent victims of trespass get scared to death and angry over threats giving ammunition to the copyright freeloaders, and the real perpetrators often lie or have no money to pay and elude collection. The proof and collection problems make it hard to profit quickly off anti-piracy or to deter it. At the same time while three or so corporate studios fight piracy, the vast majority fret over the backlash and the already precarious credibility of the business.
HOW THE ADULT INDUSTRY CAN DO THIS THE RIGHT WAY EVEN IF THEY LOSE THE TRIAL
The backlash against the studios working to protect their copyrights raises the question whether the adult content producers are getting the savviest legal advice from their counsel. The high volume, scattershot approach is what created the backlash. Lawyers ought to ask these clients ahead of time about the implication of a clearly foreseeable backlash. Perhaps there would be less liability to litigants fighting back if the attorneys worked harder to learn who the bad guys really are and avoided threatening the obviously innocent owners of ISP addresses. That is, learn who is actually doing the stealing rather than threatening everyone. This way, adult content copyright holders could make the case that they are not trying to harass innocent and naive owners of ISP addresses whose Wi-Fi has likely been trespassed.
Moreover, although the case law is sparse, I know in Georgia that the Computer Fraud statute may be applicable for the trespass to wifi, although I have not researched it yet and am at the moment just throwing it out there. Computer Trespass is part of the law and there is a private right of action. I am not sure fully its application in this scenario but it could be an idea to find out who the trespasser is and they could well be liable to indemnify the IP address holder. And voila, no scamming old ladies, no harassment, no black eye. I have a lot of following up to do on this and will update as I learn more.
To be sure, not all ISP owners are innocent. Only those who have had people outside the home get on their Wi-Fi where there is no password would be innocent. The ISP address is property as well, and the owner has some responsibility to protect it. They may argue the kids got on it, but why don't they have a filter on the computer to which the kids do not know the password? Why doesn't the Wi-Fi have a any security? The owner might not know how, but the industry could use these communications in a positive way to explain this and further secure their property, which is the ultimate goal, instead of trying to get all of the unknowing to pay a big fee.
Now, doing the right thing in all these instances makes the cases less profitable for the company and their lawyers. What the industry could do, in that case, is hire outside counsel under the old way of doing things. Instead of paying a cut of the winnings, pay the lawyer a retainer for a set amount of hours and cases filed that allows the lawyer to do right by their reputation. They can file a specified volume of cases with the ability to prosecute them the right way—a way that will not anger judges, the media, or alleged perpetrators. The lawyers can still make money and do the right thing.
The industry needs to learn that slow, steady, and not “shady” wins the race on the balance sheet and in the court of public opinion. And for their sake, hopefully the next craze isn't back to vampires or on to robots.