"My understanding, and the understanding of a lot of attorneys, is this is a flat-out disaster," adds 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."

Though courtroom rivals, the Texas lawyers both believe that cable and media companies would be better off adhering to the laws already on the books. Stone argues that the Digital Millennium Copyright Act obligates ISPs to provide information about infringing IP addresses without a subpoena, an arrangement that would seem to preclude the need for lawsuits. He also says that it's improper to sue John Does who did not participate in the same BitTorrent swarm because "there's nothing to prove they were working together."

Cashman agrees with Stone's latter point and adds that people should only be sued individually or in small groups and in the jurisdiction where the downloading occurred. A handful of copyright attorneys for adult studios generally abide by those guidelines, including Florida-based Marc Randazza.

Chris Whetzel
Chris Whetzel

Randazza says he speaks with each accused pirate and works with them to weed out cases of mistaken identity. He believes that when the John Doe cases are "done right" and combined with savvy marketing and the utilization of new technology, piracy will ultimately decline. "I think it is a wise company that does enforcement plus business-model changes," Randazza says. "You aren't going to stop it entirely with enforcement, but with that and business changes, you can really stem the tide."

Indeed, virtually everyone interviewed for this story agrees that 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 that Hollywood has been too reluctant to embrace new technology.

"The movie industry often functions as an ocean liner," says Jason Squire, editor of The Movie Business Book and a professor at the University of Southern California's School of Cinematic Arts. "It's very tough to make deliberate change; it does take time. The studios historically wait on the sidelines while somebody else takes a chance and makes a mistake and loses money, and then they find a way to make money from new technology. It happened with TV and home theaters, and it's what's happening on the Web."

Porn, on the other hand, is everywhere online — and yet piracy is still pervasive. Addressing the paradox, Boyer, the spokesman for adult distributor Pink Visual, blames YouTube-like sites that stream unlicensed content, as well as a history of underhanded business practices such as overbilling, for driving away customers.

"There has been mistreatment of the consumer," Boyer says. "It's not industry-wide, but common enough for people to notice. All it takes is a few sites that are highly trafficked doing it to sour a lot of consumers. They say, 'The heck with paying for it, I'll just go to the site where they give it away.' "

Earlier this year, Pink Visual organized two "copyright retreats" for leading porn studios and distributors to brainstorm effective ways to combat piracy. Boyer says that among the attendees there was "tremendous sympathy" and majority support for the John Doe tactics, but that his company and others are wary.

"It's carpet-bombing," says Tucker, the Private Media Group executive. "With technology we have now, when you can strategically target somebody and put the missile down the air shaft, it doesn't make sense to carpet-bomb the entire city. In the process, innocent people are getting swept up. It's the wrong way to fight a war. There's too much collateral damage."

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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3 comments
G-Lo
G-Lo

I don't know where you get your facts but "The Expendables" did NOT under perform at the box office. It had a Domestic Total Gross of $103,068,524 and a foreign Total of $171,401,870 to combine for a worldwide Total of $274,470,394. With a budget of $80 million, I don't know how you come to the conclusion that this was under performing. I'd say your article as a whole was an under performance and a waste of time.

Totornot
Totornot

Was this comment written by Sylvester Stallone? This was a good article with lots of good information. It was thorough and he talked to a lot of people. Just because he got one thing a little off (he would have been right if he said the movie sucks) this is a terrible article?

Epmgaw
Epmgaw

Yeah, some of the John Does are illegally downloading movies, and many are not. Know someone who received on of these letters for a movie no one has ever heard of, that was supposedly downloaded at a business address in the middle of the night when no one was there and the computer was off!

 
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