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More WiFi Woes: Imperial Enterprises Sues Blind Man in Outrageous Porn Piracy Lawsuit; One Lawyer Quits

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Washington – from www.miaminewtimes.com – The bad news arrived in John Doe 2,057’s mailbox in May. His wife unsealed a thick envelope from Comcast and read a carefully worded message explaining that a company called Imperial Enterprises, Inc. had filed a lawsuit against him in Washington, D.C. federal court. He stood accused of having illegally downloaded a copyrighted film five months earlier, at precisely 6:03 a.m. the morning of January 27. The name of the Imperial Enterprises movie he purportedly purloined wasn’t mentioned until four pages later. Though printed in tiny italic font in a court filing, it practically leapt off the page: Tokyo Cougar Creampies.

Yet when Mrs. Doe set eyes on that ignominious title, she couldn’t help but crack a smile at the absurdity of the situation. Her husband is legally blind. He is physically incapable of watching any film, this particular porno included.

“To be honest, it’s a little ridiculous,” Doe 2,057 says with a rueful chuckle. “My movie-watching ability is nonexistent. My kids watch movies, but they are 4 and 6, so they don’t watch porn either. Well, hopefully they don’t.”

The amusement quickly turned to anxiety. Doe, then living in Santa Clara, California, had just accepted a job in the network-security division of a Seattle software company. (He is able to work using a pair of computer programs that read his emails aloud and magnify a portion of his computer screen.) The mere suggestion that he swaps illicit smut online could jeopardize his career.

At least at the outset, he could remain anonymous. The attorneys for Imperial Enterprises tracked his Internet protocol (IP) address, the unique number assigned to a computer when it connects to the web, but they didn’t yet — and perhaps still don’t — know his real name. He is referred to in the court documents as John Doe 2,057, and he requested anonymity for this story, fearing repercussions if his employer learns of the lawsuit. But as he discovered via the letter from Comcast, Imperial’s lawyers had already asked the judge to order the cable company to identify him.

Doe remains adamant that he is innocent. Sitting in his suburban Seattle apartment in black slacks and a black turtleneck — his eyes visibly disfigured from ocular illness that leaves him living his life in a literal blur — the network-security professional recounts the rookie mistake that got him into this mess.

“I didn’t have time to set up the wireless network in my old apartment,” he says.

“I was working 18-hour days, so I just told my wife to go to Best Buy and pick up a router. She installed it, hit next, next, finish, and — boom — that was it. We lived in a very upscale building; there was no riffraff. We just assumed we didn’t have anything to worry about.”

During the following months, Doe says, he contacted Comcast numerous times to complain that his Internet connection was frustratingly slow. In hindsight, he believes his neighbors were using his unprotected wireless to download movies. But after researching his options online and consulting an attorney, he realized his predicament was thornier than he’d initially perceived. A simple mea culpa would not suffice.

To fight the case in court would set him back thousands of dollars in attorneys’ fees. Plus he’d be entangled in litigation in Washington, D.C., while living 2,700 miles away in Washington state. Finally, if he were to lose the case, he might be ordered to pay up to $150,000 under federal copyright law.

But it just so happens the offices of Dunlap, Grubb & Weaver — the D.C.-based attorneys who represent Imperial Enterprises — offer an easy alternative: Doe can pay a few thousand dollars in fees and the porn case will disappear. In exchange for the settlement, they will drop their lawsuit, and John Doe 2,057 can rest assured he will remain blissfully anonymous.

“The sad part about this entire porn thing is it will cost more to go to a judge,” Doe says. “At the end of the day, I’ll probably settle and pay the fee to make this go away.”

He is hardly alone in his predicament: Number 2,057 is one of 3,545 John Does being sued in a mass lawsuit for allegedly infringing on the copyrights of Tokyo Cougar Creampies and/or Teen Paradise 4, another Imperial Enterprises production.

This lawsuit isn’t unique either: Since January 2010, 194,345 John Does from across the country have been sued in 296 cases for alleged copyright violations, according to the Electronic Frontier Foundation (EFF), a nonprofit digital-rights advocacy organization. Virtually all the cases stem from the use of a popular file-sharing technology called BitTorrent, and all are the work of a handful of enterprising attorneys suing on behalf of independent film studios and distributors, purveyors of everything from Academy Award-winning movies such as The Hurt Locker to low-budget schlock and hard-core porn.

Major Hollywood studios, however, have yet to file a single John Doe lawsuit. The two largest suits, with a combined 48,905 defendants, were filed against alleged pirates of The Hurt Locker and Sylvester Stallone’s The Expendables, both owned by independent studios.

Not coincidentally, both pictures underperformed at the box office. Traditionally, they likely would have been reliable earners at the video store, with The Hurt Locker cashing in on the cachet of winning multiple Oscars (the film did net more than $32 million in DVD sales) and The Expendables relying on a star-studded cast to woo renters. But these days, both films can easily be obtained for the low, low price of free with just a few simple mouse clicks.

The film industry loses $6.1 billion annually to digital piracy, according to a study conducted by economist Stephen Siwek and cited recently by the Motion Picture Association of America (MPAA). And the Independent Film and Television Alliance (IFTA) says royalty rights for indie films have been halved from what they were five years ago. The John Doe lawsuits are a way for desperate movie studios and distributors to recoup those losses. Armed with a list of IP addresses and draconian copyright laws, attorneys for the scorned studios are treating a broad swath of the Internet-browsing public like their own personal ATM.

“There’s been a sea change of how content and information is exchanged,” says Lory Lybeck, a copyright attorney from Seattle who has led several high-profile legal clashes against the Recording Industry Association of America (RIAA) and now defends John Does.

“Copyright owners and distributors of that content can either adapt to the new technology or they can adapt in a mutant way. They can sue and exact hundreds of thousands of dollars for something they could only charge $20 for previously. All they need to do is find out who is sharing that content, and all of a sudden it becomes a gold mine.”

The litigation is taking place on an unprecedented scale. During its campaign against file-sharers from 2003 to 2008, the RIAA sued approximately 35,000 individuals. In comparison, a whopping 94,000 John Does have been sued in just the first seven months of 2011. Tellingly, not a single case has ever been decided by a jury.

“These lawsuits are not geared toward going to trial,” says Robert Cashman, a Houston attorney who defends accused copyright infringers.

“They’re geared as extortion schemes to pull out thousands of dollars for every accused downloader. It’s not illegal; it’s just wrong. It’s an abuse of the legal process.”

It’s the sequel to the music industry’s war on digital pirates, and the margins of Hollywood are exacting revenge like some twisted Sweeney Todd. Most of the accused are likely guilty, and the attorneys going after them say the cyber-thieves are simply getting what’s coming to them. But in a turn that’s more tragic than comic, many innocent Internet surfers are serving as legal cannon fodder while moviemakers and their lawyers line their pockets with plunder.

The latest in peer-to-peer, or “P2P,” file-sharing, Torrents, as they are known in techie vernacular, are staggeringly popular. With more than 100 million monthly users — more than Hulu and Netflix combined — Torrent file transfers account for 20 to 40 percent of all Internet traffic at any given time, according to BitTorrent, Inc., the San Francisco company that developed the technology.

For better or worse, BitTorrent has made it easy to swap a DVD-quality feature film or a musician’s entire discography. Created in 2002 by a San Francisco computer programmer named Bram Cohen, the technology is much different from Napster and its descendants, LimeWire and Kazaa.

With these earlier applications, files were transferred directly from one person’s hard drive to another on a centralized network. BitTorrent, on the other hand, divides the workload among dozens of users, each of whom shares fragments of the file that are combined like puzzle pieces when the download is completed. In essence, it creates a unique network, known as a “swarm,” dedicated to sharing each specific file. The more people exchanging data, the faster the download happens.

As the attorneys for Imperial Enterprises put it in Doe 2,057’s case, BitTorrent causes “rapid viral spreading” of their copyrighted porn. But Shahi Ghanem, executive vice president of marketing for BitTorrent, is quick to point out that the technology is merely a file-sharing protocol, not a cohesive network like its P2P ancestors.

“We at BitTorrent have as much to do with [piracy] as Google or Comcast, the companies providing the web browser and Internet connection,” he says.

“We don’t condone or support any form of piracy or copyright infringement.”

The piracy is made possible by websites that host links to BitTorrent “trackers,” which direct users to people sharing the copyrighted content they hope to acquire. The Sweden-based Pirate Bay, to name one well-known example, is a repository for innumerable Torrent trackers, which provide access to movies, music, books, software, and other content. These trackers, as their name suggests, keep track of the IP addresses participating in the swarm.

Pirate-hunters are cagey about the exact methods they use to trace IP addresses. But experts suspect it is a relatively simple process. To make their sprawling cases against thousands of John Does, the attorneys who represent the scorned movie producers, or a cyber-security firm contracted for the task, connect to a tracker and identify as many IP addresses as possible, along with the date and time they joined the swarm.

“Essentially, they think we’re one of them,” says John Steele, a Chicago divorce lawyer who was the first to file John Doe suits on behalf of porn studios. “They try to give us copyrighted info not knowing we’re gathering that for our clients. They’re giving us all the proof we need, just handing it to us.”

Then comes the tricky part: convincing a federal judge that all of those BitTorrent users are in cahoots.

“People come and go from the swarm,” explains Chris Ridder, a copyright attorney and a fellow at Stanford Law School’s Center for Internet and Society.

“They pop in and share for a while; then they’re done sharing and they leave. It’s not like everybody got together in a smoke-filled room and decided to rob a bank. It’s considerably different.”

The pirate chasers in Doe 2,057’s case contend that “because of the nature of the swarm downloads… every infringer is simultaneously stealing copyrighted material.” Hence, they should be considered co-conspirators who can be sued in any court in the country where a single download took place.

“Thousands of people are lumped together in one lawsuit just because, basically, a few lawyers have decided they can be,” says Rebecca Jeschke, a spokeswoman for the EFF.

“They’re suing where their firms are, where it’s easiest for them — not where the alleged infringement occurred. It can make it really hard for people to defend themselves.”

Rodney Githens received his John Doe letter in the mail in January, a month before he was scheduled to ship out to Afghanistan. The 45-year-old North Carolinian retired from the Army as a captain shortly after completing a tour of duty in Iraq in 2004, but he was headed to Kabul to work as a civilian contractor. Interestingly, Githens was accused of downloading The Hurt Locker, which tells the tale of an Army explosive ordnance disposal unit in Baghdad.

“I just didn’t have a lot of interest in watching that,” Githens says, his Southern drawl audible all the way from Afghanistan during a Skype chat. “I was kind of there. I didn’t need to see it. I don’t have any of the Torrent software installed on my computer. My son, who is 19, said the same thing. He allowed me to go through his computer, and I didn’t see anything. I’m fairly confident it didn’t happen at my house.”

Githens hired an attorney and was prepared to fight, but the case against him and all but a handful of his 24,583 fellow John Does was eventually dropped. According to the EFF, the judge in the case was perturbed by the slow progress of the proceedings and “set up a schedule for the timely dismissal” of the Does who had already been identified via subpoena. The soldier, though, says he never had any intention of forking over a settlement. “I feel like if you pay, it marks you as a victim, and they’ll come right back a second and a third time,” he says, echoing a claim made by several John Doe defense attorneys. “It’s a never-ending well for them. It’s a fishing expedition.”

Coincidentally, the men casting the nets are veterans like Githens. Thomas Dunlap and Daniel Grubb are the founding partners of Dunlap, Grubb & Weaver. Both men are active National Guardsmen, and Dunlap, a former New York stockbroker, spent 33 months in Afghanistan as an embedded trainer with Afghan security forces.

In January 2010, Dunlap and Grubb trademarked the name US Copyright Group. Later that same month, they filed the first large-scale copyright lawsuit against John Does in U.S. history, subpoenaing information about 749 IP addresses that had allegedly downloaded The Gray Man, a low-budget horror flick about a grandpa who cannibalizes children. Once they had the names and addresses of the presumed pirates, the lawyers mailed them a notice bearing the newly minted, official-looking seal of their US Copyright Group. The message made it clear that the John Does could do things the easy way or the hard way: Fork over a settlement or risk getting slapped with a $150,000 judgment in federal court, plus the cost of attorneys’ fees.

The tactic was not original. Beginning in late 2007, a British law firm began suing thousands of alleged pirates in Europe and squeezing them for settlements. The scheme fell apart when two of the lawyers were convicted of six counts of professional misconduct, including charges they were “acting in a way likely to diminish trust in the profession” and knowingly targeting innocent victims.

Nevertheless, the US Copyright Group broke new ground in American courts. Over the next five months, they proceeded to sue nearly 15,000 John Does in Washington, D.C. — about 9,000 more people than had ever been sued for copyright infringement in all federal courts combined in a single year.

Though it remains unclear exactly how much cash the pirate-hunters have reaped from their John Doe scheme, copycat attorneys have clamored to get in on the lucrative action. Chief among them is Steele. By his own estimate, in the past year Steele has sued roughly 15,000 John Does in 110 separate cases, and he plans to file another 50 cases in the next month. Steele has no qualms about the fact that most people he goes after are unlikely to defend themselves, even if they are not guilty, because of the embarrassing nature of the films involved. “I don’t feel embarrassed about watching porn,” he says. “I don’t think you should have to hide it. I think you should be embarrassed about a federal lawsuit being filed against you for stealing. Whether it’s adult content or not, the issue is theft.”

In December 2010, four months after Steele began targeting John Does, the website Ars Technica called him out for plagiarizing passages from the legal filings of Dunlap, Grubb & Weaver, and earlier this year the firm threatened to sue Steele for $25,000 for creating Media Copyright Group, a name the D.C. attorneys claimed was “confusingly similar” to their US Copyright Group. Dunlap did not return multiple calls seeking comment for this story; Steele says the quarrel was resolved amicably. “We had a nice conversation and realized this is silly,” he says. “We’re actually good friends now. That firm did some good pioneering stuff, and then we kind of took it to another level.”

Steele certainly isn’t the only imitator out there. West Virginia lawyer Kenneth Ford created the Adult Copyright Company (motto: “Hardcore Protection”), and last July a north Texas attorney named Evan Stone established the Copyright Defense Agency. If Stone’s name sounds familiar, that’s because he shares it with a popular male porn star: Indeed, the guy representing the creators of Debbie Does Dallas in copyright cases has the same name as one of the leading men in Debbie Does Dallas… Again.

Reached by phone recently, Stone says he is no longer filing John Doe suits on behalf of adult studios, but for ordinary independent filmmakers only. He explains he is an aspiring director himself and fighting to keep the movie business profitable. To that end, he believes his work has already made a difference.

“Anecdotally, I’ve had friends tell me their friends aren’t using BitTorrent anymore,” Stone says. “They’re looking for new ways to pirate shit because so many people are getting caught by guys like me.”

Then again, Stone acknowledges his operation suffered a serious setback when judges in Texas began to toss out his cases, ordering him to go after pirates individually rather than en masse. With a mandatory $350 filing fee per case, the prospect of suing 1,337 John Does, as Stone once did, is significantly less palatable when it costs $467,950 up front. “Obviously they got fed up with the adult cases, and so they shit-canned all of those,” Stone grumbles.

But where Stone’s and Steele’s cases have fizzled, attorneys using nearly identical tactics in other jurisdictions are still being granted carte blanche to sue Does by the bushel.

Most cyber-pirates are prosecuted in the nation’s capital. More than 85,000 John Does are currently caught in ongoing litigation in the district’s federal court, according to the EFF. D.C. is not only the home court of Dunlap, Grubb & Weaver but also the jurisdiction of Judge Beryl Howell, who worked as a lobbyist for the RIAA from 2004 to 2009, during the peak of the organization’s anti-piracy campaign.

In February, Howell issued a ruling that is now frequently cited by pirate-chasers as proof that their tactics are valid. Howell shot down a request by the EFF, the American Civil Liberties Union, and Public Citizen, a national nonprofit consumer-advocacy organization, that she not issue subpoenas for the IP addresses of 1,062 John Does accused of downloading the children’s movie Call of the Wild.

Naturally, Howell’s background has prompted skepticism about her impartiality. She was paid $415,000 to lobby on the RIAA’s behalf as the executive managing director and general counsel at Stroz Friedberg LLC, a consulting firm, according to the Center for Responsive Politics and the Implu Corporation, a company that tracks spending by lobbying firms.

“There is certainly bias,” says Cashman, the Houston copyright attorney. “As soon as we saw [the ruling] and saw who she was, we knew she should have recused herself.”

Through a court spokesperson, Howell declined an interview request for this story, citing the fact that she is presiding over an ongoing John Doe case.

On July 7, the five largest Internet service providers (ISPs) and the heavyweights of the movie, music, and TV industries announced they have devised a novel strategy to combat piracy: Educate, don’t sue.

A coalition that includes the RIAA and the Motion Picture Association of America will monitor BitTorrent file transfers and report offending IP addresses to cable companies. Under a new “Copyright Alert System,” the ISPs will then send a warning to the offending subscriber stating that the client’s account “may have been misused for content theft” and that “consequences could result.” The potential pirates will also receive information about “the abundant sources of lawful music, film, and TV content.” The ISPs will issue up to six such warnings before they resort to “mitigation measures,” such as throttling back the bandwidth of the infringing IP address.

The underlying theory behind the alert system is that many parents or people with open wireless networks are likely oblivious to the rampant piracy being perpetuated on their dime. According to the website for the new Center for Copyright Information, recent studies conducted in Norway, France, and England show that up to 70 percent of users stopped downloading illegally once notified their ISP was on to them.

However, attorneys on both sides of the John Doe battle are skeptical about the plan. “My understanding, and the understanding of a lot of attorneys, is this is a flat-out disaster,” says Cashman, the Houston John Doe defender. “The conclusion I came to is I don’t want to be a subscriber to any ISP that signed on to this.”

Virtually everyone interviewed for this story agrees the only real solution to piracy is to make more movies available online for an affordable price. As long as it remains difficult for people to access the most popular types of content from their home computer, illegal downloading will continue unabated. Services such as Netflix, Hulu, and iTunes have made momentous strides in this regard, but industry observers — and frustrated movie viewers — still say Hollywood has been too reluctant to embrace new technology.

Earlier this year, Pink Visual, a large porn distributor that opposes the John Doe suits, organized two “copyright retreats” for leading porn studios and distributors to brainstorm effective ways to combat piracy. The attendees reportedly showed sympathy and majority support for the John Doe tactics.

Yet John Doe 2,057, despite his claims of innocence, paid a settlement to make his case go away. He hired an attorney, who negotiated a settlement with undisclosed terms. The experience, he says, taught him a valuable lesson.

“The moral of the story is: Never leave your wireless network open,” he says. “It could end up costing you a few thousand dollars.”

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