“It was only a matter of time before copyright trolls filed a bit-torrent lawsuit in Tennessee,” wrote Nashville attorney Stephen Zralek in a Nov. 29 blog post.
Zralek, of the firm Bone McAllester Norton, noticed the first flare-up in a rash of copyright infringement lawsuits to hit Middle Tennessee, a particular variety of suit in which the plaintiffs come armed with the Internet Protocol addresses of alleged online pirates who had shared, at least in part, copyrighted files — in this case, videos, pornographic or otherwise. The cases popped up on the federal docket in Nashville at the end of October.
BitTorrent software provides an interface that allows users to search for and share files (music, movies, etc.) on a peer-to-peer basis, allowing large files to be distributed in segments between individual machines rather than downloaded from a centralized set of servers.
Generally, plaintiffs in these cases find IP addresses attached to the sharing of their copyrighted work and file lawsuits against either a single IP address owner (John Doe) or a batch of dozens of them. They then subpoena Internet service providers for information identifying the IP address owners.
Zralek wrote, “By law, the ISPs are required to reach out to the John Does and tell them they have 30 days to file a ‘motion to quash’ the subpoena, or otherwise settle the lawsuit. If the individuals take no action, the ISPs will release their identities to the Plaintiff, after which the Plaintiff will amend the complaint to name the individual in the copyright infringement action — for all the world to see.”
But detractors of the legal tactics used in BitTorrent copyright infringement claims liken the suits to fishing expeditions in a sea of IP addresses, or at times just straight-up extortion.
Nashville attorney Sam Trenchi filed suits locally on behalf of the controversial law firm Prenda Law and its clients “AF Holdings” and “Quad Int’l Inc.” over their purported adult movies Knock My Socks Off, Sexual Obsession and Tokyo Pickup.
Trenchi said he merely served as local counsel for Prenda Law and didn’t want to specifically comment on the Nashville cases. Trenchi directed inquiries to Prenda Law.
John Steele, of counsel to Prenda Law, said he’s filed more than 300 such suits himself, none of which had to go past jury selection, usually settling first.
“The fact that people fight tooth and nail to let us know their names, and then once we do they immediately settle, I think that tells you a lot of the strength of our evidence and the fact that you’re not quite as indignant when you know deep down that you did it.”
An Oct. 15 Forbes piece titled “How Porn Copyright Lawyer John Steele Has Made a ‘Few Million Dollars’ Pursuing (Sometimes Innocent) ‘Porn Pirates’ ” likens the crusade against copyright infringers to a similar one by the Recording Industry Association of America between roughly 2004 and 2009.
The big difference is that RIAA wanted to scare music copyright infringers with “massive, scary judgments in highly publicized cases,” but in the case of porn companies and their lawyers, they are “content to get relatively small settlements from individuals who pay up quietly to avoid being linked by name in public court filings for allegedly watching a film such as Illegal Ass 2.”
As might be expected, the companies and lawyers involved in many of the copyright infringement lawsuits have taken abuse from the online community, including a site called Fight Copyright Trolls. Whereas Prenda Law maintains on its website a list (some by name, some by IP address) of the many defendants it has sued, Fight Copyright Trolls keeps track of the actions of Prenda Law and its agents, and also maintains its own list of attorneys it deems “copyright trolls.” Steele, Trenchi and other Prenda lawyers made the list.
Trenchi’s response to the criticism leveled against both him and Prenda Law: “All I can say is attorneys are highly regulated. You can make an accusation that people are doing something that’s extortive, but I’m not in the business of doing that, and I don’t think they are either. If you steal a movie, you steal a movie.”
The Forbes article stated that in some cases, ISPs began resisting, citing a Chicago case in which Comcast accused AF Holdings of shaking down defendants by embarrassing them into paying settlements.
Steele said that while some make such allegations about questionable methods, no bar association or other authority has.
“A very small percent of judges do not allow [a Prenda] case to go through — 2 or 3 percent,” Steele said. “No judge has ever said that what we do is unethical or extortion or anything inappropriate.”
In May, Prenda Law sued AT&T and Comcast in Illinois, according to Forbes, “for aiding hackers targeting adult content” by not identifying their customers’ information.
One ISP, though, has apparently chosen to fight back against the lawsuits.
Faced with a federal lawsuit filed in the North District of Texas by Malibu Media, Verizon Online shoved back by filing its own motion to conduct discovery on the managers of the company, stating that “the Plaintiffs’ [sic] appears to seek discovery in an effort to pursue a scheme which, if not illegal, is at a minimum of a type to which the courts should not lend their powers and support. … ”
“Verizon further intends to seek discovery into the business model of Plaintiffs and whether the Plaintiffs are good faith publishers of the material they purportedly seek to protect as opposed to whether Plaintiffs’ business model is primarily profit from their aggressive and abusive copyright enforcement efforts.”
In the local cases, against individual IP address owners, a magistrate granted Trenchi’s clients AF Holdings and Quad Int’l expedited discovery of ISP subscriber information. A few weeks later, Trenchi filed notices to voluntarily dismiss the suits.
As for another case, involving the Kevin Spacey-led move Inseparable, Nashville attorney Klint Alexander appeared to make headway on it last week when a magistrate judge granted him permission to subpoena ISPs for the IP information of “John Does 1-82.”
Alexander — who’s name also made it onto a Fighting Copyright Trolls list, though not associated with Prenda — also declined to comment on the ongoing cases.
He has similar ongoing proceedings involving the movies Dawn Rider, Night of the Templar, The Divide and Tucker and Dale vs. Evil — not exactly porn, but not exactly Lincoln, either.