Update: Porn Now Has to Deal with a Big Gun: Meet The Attorney Who’s Going After Patrick Collins, K Beech Et.Al for $10M and More

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Kenneth J. Henry [pictured] is the founding member of Henry & Associates, PLLC in Louisville, Kentucky. Henry concentrates his practice in civil litigation. His academic creds are pretty impressive: University of Louisville, J.D.; University of Tennessee, Ed.D.; Tennessee Technologicall University, M.A.;Tennessee Wesleyan College, B.S.

His client Jennifer Barker, claiming to represent more than 200,000 people, filed a lawsuit in Louisville, Kentucky federal court last week seeking class-action status. The suit states that five porn studios — Elegant Angel, Malibu Media, K-Beech, Third Degree Films and Raw Films — are using the court system to “extort” money from those who have never illegally downloaded adult content on a BitTorrent network.

Plaintiff Barker, claims she had been pressured into settling porn piracy claims noting that “a new business model” has erupted in porn industry where adult studios “can unlawfully gain more money than they can by selling access to their pornographic videos.”

Barker seeks class certification and compensatory and punitive damages for RICO violations, fraud, defamation, intentional infliction of emotional distress and unjust enrichment.

Attorney Henry has asked the court to amend the complaint as proof develops — and that could include adding more porn studio defendants in the suit, which currently asks for $10 million in damages.

“There is a possibility that we may add more individual studios,” Henry told XBIZ.

“The suit is early on, and the $10 million in damages we put on the civil cover sheet is not indicative of what it could be if we are approved for punitive damages under RICO. That would triple the amount.”

Update: Ken Henry’s now estimating that 500,000 people have been sued or gotten calls from representatives of the companies since 2007.

“Nobody wants their name associated with downloading porn … ” Henry said, giving the example of a typically graphic movie title.

Among those being sued were 57-year-old Josip Gotvald, a Croatian immigrant living in Tempe, Ariz. When Gotvald received a notice that he defaulted and lost a copyright lawsuit, he didn’t know what it meant and hadn’t ever heard of the company suing him, Raw Films, or the film he was accused of downloading, “Raw Rescue.”

“I have never used a computer, much less used one to download a movie,” Gotvald wrote in an affidavit.

Gotvald, who set up a wireless account for his college-aged children, said in his affidavit that someone must have linked to his wireless network.

“I believe that a neighbor or passer-by access my wireless Internet connection and used it to download Raw Films’ movie Raw Rescue,” Gotvald wrote. “I have never seen any movie that could be the sort of movie I understand Raw Rescue to be, nor would I want to.”

Henry agrees and notes that unsecured wireless accounts can leave open the possibility of people tapping the network and downloading anything they want.

“You don’t know who is using the Internet on which computer,” Henry said.

Overall, Henry describes the lawsuits as a business model that’s probably more profitable than making films.

“It’s brilliant in one sense of the word,” Henry said. “But, it’s wrong. It’s just absolutely wrong.”

Some federal judges are starting to agree and push back. Magistrate Judge Gary R. Brown in the Eastern District of New York pointed out how unreasonable the assumptions made by the film companies are in a ruling handed down in May in a case involving K-Beech.

The judge cited three “John Does” in one of the cases before him. Each had reasons or proof that they didn’t or couldn’t have downloaded the porn in question. One was at work, another was an octogenarian with “neither the wherewithal nor interest” in such a download, while a third found copying such a film contrary to her “religious, moral, ethical and personal views.”

“The assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time,” Brown wrote. “It is no more likely that the subscriber to an IP address carried out a particular computer function _ here the purported illegal downloading of a single pornographic film _ than to say an individual who pays the telephone bill made a specific telephone call.”

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