Tuesday 5 April 2011

I'm Kreskin

Or at least Dick Puddlecote says so. Last year I suggested a route for pornography producers plagued by copyright infringement: litigation as profit centre. I wrote:
An alternative litigation strategy that could work would be use of copyright infringing honeypot sites whose viewers would then be threatened with copyright lawsuits for downloading pirated content, with threat of public disclosure of everything the viewer had been watching. I suspect a lot of viewers would pay up rather than have notice served to them at work and the whole list of viewed videos read aloud, for example.
TechDirt linked to the piece; perhaps some folks in the industry saw the suggestion. Check out the litigation strategy on Nude Nuns with Big Guns:*
On March 7, Camelot Distribution Group, an obscure film company in Los Angeles, unveiled its latest and potentially most profitable release: a federal lawsuit against BitTorrent users who allegedly downloaded the company’s 2010 B-movie revenge flick Nude Nuns With Big Guns between January and March of this year. The single lawsuit targets 5,865 downloaders, making it theoretically worth as much as $879,750,000 — more money than the U.S. box-office gross for Avatar.

At the moment, the targets of the litigation are unknown, even to Camelot. The mass lawsuit lists the internet IP addresses of the downloaders (.pdf), and asks a federal judge to order ISPs around the country to dig into their records for each customer’s name.

It’s the first step in a process that could lead to each defendant getting a personalized letter in the mail from Camelot’s attorneys suggesting they settle the case, lest they wind up named in a public lawsuit as having downloaded Nude Nuns With Big Guns.

A hearing on that request is set for April 13. In all probability none of the alleged downloaders know it’s happening.

Welcome to the future of Hollywood, or at least the less glittery outskirts of Tinsel Town that produce art films, exploitation flicks and porn. Over the past year, small-budget film producers have nearly perfected a slick, courtroom-based business strategy that’s targeted more than 130,000 suspected movie downloaders.


In contrast to the the RIAA’s much-criticized and now-abandoned war against music pirates — which targeted 20,000 downloaders in six years — the movie lawsuits appear to have been designed from the start as for-profit endeavor, not as a deterrent to piracy.


Rights groups and defense lawyers are rankled by the large-scale, semi-automated character of the litigation.

“This is a mass copyright litigation machine,” says Lory Lybeck, a Seattle attorney representing dozens of the defendants. “Most people don’t want to have a public lawsuit against them for Teen Anal Nightmare 2, so they settle.”

Using an outside contractor, like the U.K. firm GuardaLey, the companies start by trolling BitTorrent sites for the films in question, and dipping into the active torrents, capturing the IP addresses of the peers that are downloading and uploading pieces of the files.


It’s an efficient model for winning settlements: the movie downloaders face the prospect of defending against a federal lawsuit, possibly thousands of miles away, and having a third party rifle through their computer. A quick settlement is even more appealing in cases involving pornography, where a defendant who chooses to fight likely will see their name on a public court docket.

That’s the predicament a 38-year-old Houston, Texas, man finds himself in. A defendant in “West Coast Productions v. Does 1 – 5,829,” (.pdf) filed in Washington, D.C. in January, the man was notified by Comcast this month that a subpoena is seeking his information in connection with Teen Anal Nightmare 2. He has a month to challenge the subpoena.

The man, who spoke to Threat Level on condition of anonymity, says he wants to fight the allegations. But to do so, he likely would have to litigate halfway across the country, and his name might be exposed by the sheer act of challenging the subpoena.

“I didn’t download this,” he says. “I’m gonna fight this.”


But however controversial, the mass-litigation tactics appear to be working; defendants are settling the cases out of court, according to interviews with defense attorneys. Terms are confidential.

“Most of the people I represent settle immediately because they want this over,” says Illinois attorney Charles Mudd. “This is an abuse of the court process.”
Would you fly half-way across the country to defend yourself publicly against charges that you downloaded and presumably enjoyed "Teen Anal Nightmare 2"? Or any similar titles? (warning, obscene dialogue at youtube link) I think most folks, even if innocent, would quietly pay up.

It seems entirely possible to build a business model where the expected profits from litigation exceed revenues from actual film sales. Torrenting copyrighted movies is and should be illegal. But there's something wrong with a legal process that allows this kind of trolling lawsuit. IP addresses are hardly unique identifiers. And the innocent are more likely to pay up than to fight. The process needs fixing.

*Yeah, that phrase is going to bring in some disappointed readers on Google searches.


  1. Have you seen this? http://torrentfreak.com/ip-address-not-a-person-bittorrent-case-judge-says-110503/

    It may warrant an update post.

  2. @Matthew: It won't stop the shake-down notices.