From the Porn Piracy Files: Sunny Leone and Hubby Now Playing the Let’s Sue the IP Address Holders Game

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from www.hamptonroads.com – At 11:46 p.m. on March 1, someone in Hampton Roads downloaded an adult pornography movie. Illegally.

The company that produced the movie “Sunny Leone – Goddess” is suing that person and dozens of others in a new round of attacks on illegal downloads of porn. But first, the company had to petition a federal judge for permission to find out who downloaded the movie from IP address 70.177.227.14.

That has proved to be tricky for the movie producers. Judges are making it harder for companies to obtain the names of illegal downloaders. Cable providers also have started to push back because the number of cases has become too burdensome, they said.

Fourteen porn-related copyright infringement cases against 66 “John Does” have been filed over the past 12 weeks in the Norfolk federal court. An additional 53 cases against 193 other John Does have been filed in the Richmond and Alexandria federal courts.

The movie producers filing the suits in Norfolk are named AF Holdings, Ingenuity 13, Openmind Solutions and Sunlust Pictures, each a limited liability company owned by people in the porn industry. Sunlust, for example, is owned by Leone and her husband, Daniel Weber.

Those companies hire private investigators to research Internet peer-to-peer websites, looking for people who are illegally downloading their copyrighted porn using BitTorrent technology. But those investigators are only able to obtain an IP address. The companies have to turn to a federal judge for a subpoena to force Internet providers to identify the name belonging to the address.

Unlike old-school peer-to-peer file sharing, BitTorrent protocol works by sharing bits of files by many users. An individual user collects those bits to create a complete file, such as a porn movie.

Over the past two years, tens of thousands of these copyright infringement cases have been filed across the country. The industry typically seeks $2,000 to $5,000 to settle with each defendant.

Virginia Beach attorney Tim Anderson, representing Sunlust, asked a judge earlier this month for a subpoena to identify the person who downloaded “Sunny Leone – Goddess,” arguing that Doe should have “little expectation of privacy” after opening his computer to file sharing with others on the Internet.

Anderson is awaiting a ruling in that case and dozens of others. Anderson, and Chicago attorney John Steele, who represents porn companies nationally, did not respond to messages.

They have had little success in the Norfolk federal court. Of 111 John Doe defendants sued here last year and earlier this year, four settled out of court. The rest were dropped for various reasons.

The lawyers have been hampered by conflicting opinions on whether to grant the movie companies subpoenas to identify the John Does.

Washington lawyer Eric Menhart has represented more than 100 John Does in Virginia, Maryland and the District of Columbia. He said he’s had about a 50-50 success rate of quashing subpoenas.

“Virginia has been relatively favorable to Doe defendants. D.C. has been relatively unfavorable,” he said. “It definitely changes from jurisdiction to jurisdiction.”

In a case out of the Washington federal court, AF Holdings sought subpoenas to identify 1,058 John Does the company said illegally downloaded its porn movies. Internet providers, including Cox Communications, objected.

The judge, noting the different opinions on the matter, granted the subpoenas, but put everything on hold while the issue is appealed. The outcome of the appeal could determine the success of these cases, legal experts say.

One of those conflicting decisions came from a Norfolk federal judge who ruled last year that a porn movie company could not obtain subpoenas for numerous John Does.

And a Richmond federal judge denied issuing subpoenas in a similar case, finding that the porn company’s legal tactics amounted to “coercion” and a “shake down.” That judge also contemplated sanctions against the Richmond lawyers involved, citing possible ethics violations, but backed off in the end. In that case, one of 85 John Does settled out of court. The rest were dismissed.

In an earlier Norfolk case, one of the John Doe defendants sent a letter to the court alerting the judge hearing the case that he had been contacted by Steele with an offer to settle the matter for $3,400. If Doe declined, he told the judge, Steele would expose his identity, according to court filings.

U.S. Magistrate Judge Tommy E. Miller, who handled the case, called Steele’s move “threatening” and said he had been made aware of another Doe defendant who received what the judge described as a “threatening phone call” from Steele.

Critics, including the American Civil Liberties Union and the Electronic Freedom Foundation, say this tactic amounts to extortion.

“This is not about copyright infringement,” said Mitch Stoltz, staff attorney for the EFF. “Their goal is to make money.”

He said across the country judges are becoming more skeptical of the porn industry’s tactics. A federal judge in Philadelphia is pushing porn producer Malibu Media to take its case to trial against three John Does. It would be the first such trial in the country, he said.

The porn industry and its lawyers also have been thwarted in collecting damages in many of the cases, including those involving hundreds of Doe defendants in Hampton Roads, because of delays.

Internet providers such as Cox say they destroy the identities of IP address holders soon after the address is dropped. That has created another loophole – people who illegally download movies or other copyrighted material have learned to change their IP address frequently.

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