5 Porn Studios Accused of Shaking Down Piracy Defendants

Jul 9, 2012 2:00 PM PST

LOUISVILLE, Ky. —  A lawsuit, seeking class-action status at federal court in Louisville, says that five porn studios — Elegant Angel, Malibu Media, K-Beech, Third Degree Films and Raw Films — are using the court system to "extort" money from those who have never illegally downloaded adult content on a BitTorrent network.

Plaintiff Jennifer Barker, claiming to represent more than 200,000 people who have been pressured into settling porn piracy claims in the past five years, says that "a new business model" has erupted in porn industry where adult studios "can unlawfully gain more money than they can by selling access to their pornographic videos."

Barker says in the suit that the settlements range between $1,000-$5,000.

"These entities, various pornography purveyors, have filed suit in numerous venues seeking to extort money from individuals they claim have downloaded pornography from the Internet," the suit said. "The pornography purveyors utilize a technique known as trolling, whereby individuals hired by the various pornography purveyors search for Internet protocol addresses associated with the use of file sharing software such as BitTorrent.

"Once the IP addresses have been harvested, the various pornography purveyors file suit naming defendants as John Doe. They then seek to have mass subpoenas issued for the Internet providers associated with the harvested IP addresses in order to obtain the name and address of the owner of the IP address on the date it was harvested."

The suit goes on to say that the studios have begun using the court system of the state of Florida to file true bill of discovery lawsuits in which they seek only to extract the names and addresses of individuals associated with the various IP addresses.

In Florida, a bill of discovery is initiated by filing a complaint which seeks relief in the form of discovery. It is usually brought to obtain disclosure of facts within a defendant’s knowledge, or of deeds or writings or other things in the defendant’s custody, or in the aid of prosecution or defense of an action in some other court.  But the bill of discovery in Florida can't be used as a fishing expedition to see if causes of action exist.

 "Once they obtain contact information, the pornography purveyors begin to shake down these individuals by telephone. The tactics of the pornography purveyors clearly indicate that they are not convinced that the individuals they accuse of downloading pornography from the Internet have actually done so.

"This is true because they often shake the individuals down for $1,000-$5,000. The pornography purveyors know that this amount of money is less than the cost of defense would be if suit were filed. They also know that individuals such as the plaintiff in this matter are embarrassed to have their names associated with pornography, and therefore, are susceptible to being shaken down.

Barker said a representative from one of the distributors called her in May, accusing her of illegally downloading videos. She says the representative falsely claimed that Barker was a defendant in a lawsuit pending in Dade County, Fla., though she had not received a subpoena for her IP address.

Barker, who resides in Louisville, said the defendants asked her to pay a settlement or "she would be identified publicly as having downloaded pornography and would be subject to hundreds of thousands of dollars as a judgment if the suit went forward because there were multiple downloads."
Barker refused to pay, saying she wasn't familiar with file-sharing software and had never downloaded any pornography from the Internet.

In the suit, Barker says she isn't the only one who has been pressured to settle over a porn BitTorrent claim and that the porn distributors used "improper litigation tactics" by hiring an entity to "negotiate settlements" on their behalf, even though their lawsuits did not seek any damages, but merely sought access to contact information associated with certain IP addresses.

"The pornography industry has begun a campaign to shake down users of file sharing technology such as BitTorrent as well as individuals who have never used any file sharing technology," the complaint states. "Often these targets of the pornography industry have had their IP address 'spoofed,' a process whereby an IP address is forged and made to appear to be an IP address other than the actual IP address of the person using the Internet.

"Others have been the victims of a compromised home network that has been used by others unbeknownst to the owner of the network. Furthermore, even if the IP address has been correctly identified, the mere fact of ownership of the IP address does not in any way indicate that the owner participated in an unlawful download of copyrighted material."

Barker seeks class certification and compensatory and punitive damages for RICO violations, fraud, defamation, intentional infliction of emotional distress and unjust enrichment.

Attorney Kenneth Henry, who represents Barker, has asked the court to amend the complaint as proof develops — and that could include adding more porn studio defendants in the suit, which currently asks for $10 million in damages.

"There is a possibility that we may add more individual studios," Henry told XBIZ. "The suit is early on, and the $10 million in damages we put on the civil cover sheet is not indicative of what it could be if we are approved for punitive damages under RICO. That would triple the amount."

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