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Illegal movie download cases reflect new dilemma

SALT LAKE CITY — Seth Black knows a lot of John Does.

An attorney for high-powered intellectual property law firm Workman Nydegger, Black represents the people motion picture studios sue for illegal movie downloads. A single copyright infringement action can include thousands of defendants each identified in court filings as a "John Doe," and since the start of 2010 movie studios have sued more than 200,000 John Does.

Black estimates he has consulted with more than 60 of these John Does over the past year.

"In the long run it doesn't make sense for clients to fight these cases," Black told the Deseret News. "It costs a lot more to fight them with a competent attorney than it does to settle … which in these cases usually ranges from $1,000 to $3,000. Most people when faced with that choose to settle if they want immediate closure."

Indeed, the John Doe movie download cases are just the tip of the iceberg for a uniquely 21st century dilemma: ascertaining the appropriate application of static copyright laws to cutting-edge technologies that never really stop evolving. For litigants and judges alike, finding the right intersection of laws and technology is truly a work in progress.

A recent Seattle Weekly article reports the motion-picture industry claims $6.1 billion in annual lost revenues to illegal downloads. Within the industry, two vastly different strategies have taken shape to deter piracy. After watching the music recording industry suffer severe backlash for trying to enforce copyright laws against digital pirates, major movie studios aren't suing anyone but instead pouring millions of dollars into anti-piracy public relations campaigns.

Conversely, the parties using the courts system to offset losses to digital piracy are chiefly pornography producers with plummeting profits estimated to have fallen as much as 40 percent in recent years.

Every Doe's case is unique, but generally speaking Black presents them with a similar set of choices: pay a couple thousand dollars to settle; fork out considerably more money to fight the lawsuit where it was filed, which in these types of cases is usually Washington, D.C.; or do nothing, a precarious proposition because it exposes the John Doe to $150,000 in potential fines under U.S. copyright law. Not surprisingly, no movie download case has reached a jury in 2011.

Judges are starting to catch on to the predatory aspects of mass copyright lawsuits. On Sept. 8, Federal Judge Bernard Zimmerman dismissed a single lawsuit's claims against more than 5,000 John Does for illegally downloading a pornographic film. In his written decision, Zimmerman voiced serious concerns about large-scale copyright litigation.

"Plaintiff, well aware of the difficulties out-of-state … defendants would face if required to appear in San Francisco, has nonetheless sent them settlement demands which apparently inform them that they have been sued in this District," Zimmerman wrote. "The defendants are left with a decision to defend themselves in San Francisco or hire an attorney to do so. This does not comport with the 'principles of fundamental fairness.' "

BitTorrent technology, which functions by putting hundreds of users interested in the same digital file into a virtual swarm, facilitates the filesharing of movies. But a basic BitTorrent program doesn't hide a downloader's Internet protocol (IP) address — essentially the physical location of the Internet connection. So a movie studio can obtain a boatload of offending IP addresses by recording which users participate in the virtual swarm for a given file.

Merely obtaining an offender's IP address is enough for the movie studio to begin a lawsuit for copyright infringement; the studio will file suit against each defendant as a "John Doe" and subsequently subpoena the offender's identity from the Internet service provider (ISP) associated with the IP address.

However, the process of identifying digital pirates through IP addresses is not without drawbacks. An IP address identifies the owner of the Internet connection used for the illegal download — not necessarily the person who downloaded the movie onto a computer. For example, if your neighbor uses your unsecured wireless Internet router to effect an illegal download, the movie studio would ostensibly sue you because the IP address is in your name.

"Some people really have absolutely no idea how this happened, how they got caught up in this," Black said. "Those are typically people who are normal, average Joes, and they have open wireless (Internet) access points at their house — which is about 50 percent of the people I see."

Movie studios still looking to pursue litigation are increasingly focusing their efforts on formulating cases that name significantly fewer defendants and are filed in closer proximity to the defendants' homes. Although copyright laws ultimately side with movie studios, in the digital age that doesn't necessarily mean even scaled-down litigation against Internet pirates will ultimately prove to be in the studios' best interests.

"After five years of suing people individually, the music labels came to a conclusion that this really was not an effective way to try and save their business model and fight illegal infringement," said Corynne McSherry, a senior staff attorney for the nonprofit Electronic Frontier Foundation. "I think at the end of the day, we're going to see that (with movie studios) too because the business model is going to seem a lot less appealing as more judges actually hold the plaintiffs' feet to the fire and ask them to pursue this litigation correctly."


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