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From the Porn Piracy Files: Porn industry targets dozens of Southwest Florida residents for illegal downloading

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from www.naplesnews.com – A scorned porn industry has brought its legal wrath down on Southwest Florida.

In recent months, about 70 local residents have become the latest targets of copyright infringement lawsuits filed by adult film makers who, by one estimate, have sued more than 200,000 people nationwide for illegally downloading explicit videos using peer-to-peer networks.

Backers of porn producers say they’re taking a stand against stealing copyrighted material, which has devastated California’s skin industry.

“The suits are absolutely a statement against piracy,” M. Keith Lipscomb [pictured], a Miami-based lawyer representing four porn companies suing locally, said in an e-mail.

“Deterrence is one of plaintiff’s key objectives.”

Defense lawyers, however, have said the porn industry has turned legal proceedings into an extortion plot. Rather than taking cases to juries, the porn industry coaxes settlements from defendants, reminding them of the potential litigation costs and embarrassment of being attached to a federal pornography case, lawyers said.

“They’re using the stigma of adult films to force and intimidate,” said Kubs Lalchandani, a Miami-based cyber lawyer whose firm has handled about 200 of these cases, including a few in Southwest Florida.

Since late March, 19 cases naming hundreds of defendants have been filed in the U.S. District Court for the Middle District of Florida, which stretches from Jacksonville to Fort Myers. Of the 71 locals identified in lawsuits, 18 are from Naples, 17 from Cape Coral and 14 from Fort Myers.

Each case looks nearly identical. The plaintiffs don’t know the names of the Internet users downloading their videos, but they have IP addresses, or unique identifiers of an Internet user. Using those IP addresses, they file suit against large numbers of “John Doe” defendants who shared the same video file online.

With the blessing of judges, the porn companies obtain subpoenas from Internet service providers for the name and contact information of the IP address owner. Within a few months, the “John Does” receive a call from the plaintiffs with a message: settle the case or risk further court action. Fearful of becoming involved in a federal pornography lawsuit, one which could result in damages up to $150,000, many defendants settle.

The typical settlement cost: $1,000 to $6,000.

“If you downloaded a film illegally, there should be a penalty associated with that,” Lalchandani said. “It’s the settlement tactics that bother me.”

Lipscomb said defense lawyers are diverting attention from the illegal downloads by making an issue of settlement negotiations, which he called “fairly tame” and “for the most part informational.”

“The discussions regarding settlements are not any more coercive than ordinary settlement discussions between parties in any dispute,” Lipscomb wrote in the e-mail.

The recent deluge of pornography lawsuits bears some resemblance of the music industry’s pushback against users of Napster and similar peer-to-peer networks in the mid-2000s.

At that time, the Recording Industry Association of America waged a five-year legal battle against more than 30,000 defendants. All but one case was dismissed or resulted in a settlement, typically in the $3,500 range.

The porn studios have also filed thousands of lawsuits and sought settlements in virtually every case.

But unlike the recording industry, porn studios have sued far more defendants and profit off settlements from nervous defendants, said Rebecca Jeschke, digital rights analyst for the Electronic Frontier Foundation, a San Francisco-based nonprofit.

“I think (the recording industry) felt they were trying to send a message with these suits,” Jeschke said. “What seems to be different is I think this is a business model, not anything trying to send a message to anyone.”

Southwest Florida had largely been immune to porn copyright claims until two batches of lawsuits hit the courts — one in late March, another in mid-May.

Some local residents have already received notices from their Internet providers about subpoenas for their personal information. For most, letters will be coming in the mail soon. Soon after, calls likely will come from lawyers representing the porn industry, encouraging settlement.

For locals, there are a few defenses. The most common is that someone else used the Internet service of a “John Doe,” as one defendant from Estero claims in court records. Another is to refuse the settlement pressures and force the porn company to proceed with litigation, which becomes expensive. Another is to ask a federal judge to deny the subpoena, as the Estero “John Doe” has done.

So far, judges in Fort Myers have allowed the subpoenas.

“Florida seems to find in favor of the plaintiff’s argument,” said William Wohlsifer, a Tallahassee-based lawyer representing the Estero “John Doe.”

In the past six months, federal judges in northern California and New York have taken notice of the lawsuits, decrying the porn industry’s legal strategy.

One New York judge called the lawsuits “a nationwide blizzard of civil actions” with “evidence of abusive litigation tactics.”

The judge noted how several defendants were likely innocent. They included a “John Doe” who was at work when the porn was downloaded, a woman with an unsecured wireless router and an octogenarian with no interest in downloading “Gang Bang Virgins.”

In Colorado, Pennsylvania and other states, federal judges have upheld the legitimacy of the legal strategy.

Porn industry opponents also have railed against the process of filing a single lawsuit against many defendants, calling it a way to avoid legal fees of suing individuals. Lipscomb has noted that the strategy unclogs the legal system and saves money in court administration costs.

If the lawsuits ever stop, it will be because a federal appeals court or a legislative body steps in, Wohlsifer said. While some federal circuit judges have fought back against the lawsuits, their opinions aren’t binding nationwide.

“The endgame is probably going to come from a higher court,” Wohlsifer said. “But as long as defendants keep settling and not fighting, or the plaintiffs keep dismissing, we’re not going to get there.”

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