By Sarah Fenske
By Danny Wicentowski
By Lindsay Toler
By Danny Wicentowski
By Danny Wicentowski
By Jessica Lussenhop
By Lindsay Toler
By Lindsay Toler
The bad news arrived in John Doe 2,057's mailbox in May. His wife unsealed a thick envelope from Comcast and read a carefully worded message explaining that a company called Imperial Enterprises Inc. had filed a lawsuit against him in Washington, D.C., federal court. He stood accused of having illegally downloaded a copyrighted film five months earlier, at precisely 6:03 a.m. on the morning of January 27. The name of the Imperial Enterprises movie he purportedly purloined wasn't mentioned until four pages later. Though printed in tiny italic font in a court filing, it practically leaped off the page: Tokyo Cougar Creampies.
Yet when Mrs. Doe set eyes on that ignominious title, she couldn't help but crack a smile at the absurdity of the situation. Her husband is legally blind, with vision roughly 1/100th of that of a person with normal sight. He is physically incapable of watching any film, this particular porno included.
"To be honest, it's a little ridiculous," Doe 2,057 says with a rueful chuckle. "My movie-watching ability is nonexistent. My kids watch movies, but they are four and six, so they don't watch porn either. Well, hopefully they don't."
The amusement quickly turned to anxiety. Doe, then living in Santa Clara, California, had just accepted a job in the network-security division of a Seattle software company. (He is able to work using a pair of computer programs that read his e-mails aloud and magnify a portion of his computer screen.) The mere suggestion that he swaps illicit smut online could jeopardize his career.
At least at the outset, he could remain anonymous. The attorneys for Imperial Enterprises tracked his Internet protocol (IP) address, the unique number assigned to a computer when it connects to the Web, but they didn't yet — and perhaps still don't — know his real name. He is referred to in the court documents as John Doe 2,057, and he requested anonymity for this story, fearing repercussions if his employer learns of the lawsuit. But as he learned via his letter from Comcast, Imperial's lawyers had already asked the judge to order the cable company to identify him.
Doe remains adamant that he is innocent. Seated in his suburban Seattle apartment clad in black slacks and a black turtleneck, his eyes visibly disfigured from ocular illness that leaves him living his life in a literal blur, the network-security professional recounts the rookie mistake that got him into this mess.
"I didn't have time to set up the wireless network in my old apartment," he says. "I was working eighteen-hour days, so I just told my wife to go to Best Buy and pick up a router. She installed it, hit next, next, finish, and boom, that was it. We lived in a very upscale building, there was no riffraff. We just assumed we didn't have anything to worry about."
In the following months, Doe says he contacted Comcast on numerous occasions to complain that his Internet connection was frustratingly slow. In hindsight, he believes his neighbors were using his unprotected wireless to download movies. But after researching his options online and consulting an attorney, he realized his predicament was thornier than he'd initially perceived. A simple mea culpa would not suffice.
To fight the case in court would set him back thousands of dollars in attorney's fees. Plus he'd be entangled in litigation in Washington, D.C., while living 2,700 miles away in Washington state. Finally, if he were to lose the case, he could be ordered to pay up to $150,000 under federal copyright law.
But it just so happens that the offices of Dunlap, Grubb and Weaver — the D.C.-based attorneys who represent Imperial Enterprises — offer an easy alternative: Doe can pay a few thousand dollars in fees, and the porn case will disappear. In exchange for the settlement, they will drop their lawsuit, and John Doe 2,057 can rest assured that he will remain blissfully anonymous.
"The sad part about this entire porn thing is it will cost more to go to a judge," Doe says. "At the end of the day, I'll probably settle and pay the fee to make this go away."
He is hardly alone in his predicament: Number 2,057 is one of 3,545 John Does being sued in a mass lawsuit for allegedly infringing on the copyrights of Tokyo Cougar Creampies and/or Teen Paradise 4, another Imperial Enterprises production. This lawsuit isn't unique, either: Since January 2010, 194,345 John Does from across the country have been sued in 296 cases for alleged copyright violations, according to the Electronic Frontier Foundation (EFF), a nonprofit digital-rights advocacy organization. Virtually all the cases stem from the use of a popular file-sharing technology called BitTorrent, and all are the work of a handful of enterprising attorneys suing on behalf of independent film studios and distributors, purveyors of everything from Academy Award winners such as The Hurt Locker to low-budget schlock and hard-core porn.
The film industry loses $6.1 billion annually to digital piracy, according to a study conducted by economist Stephen Siwek and cited recently by the Motion Picture Association of America (MPAA). And the Independent Film and Television Alliance (IFTA) says royalty rights for indie films have been halved from what they were five years ago. The John Doe lawsuits are a way for desperate movie studios and distributors to recoup those losses. Armed with a list of IP addresses and draconian copyright laws, lawyers for the scorned studios are treating a broad swath of the Internet-browsing public like their own personal ATM.
The litigation is taking place on an unprecedented scale. During its campaign against file-sharers from 2003 to 2008, the Recording Industry Association of America (RIAA) sued approximately 35,000 individuals. In comparison, a whopping 94,000 John Does have been sued in just the first seven months of 2011. Tellingly, not a single case has ever been decided by a jury.
"These lawsuits are not geared toward going to trial," says Robert Cashman, a Houston attorney who defends accused copyright infringers. "They're geared as extortion schemes to pull out thousands of dollars for every accused downloader. It's not illegal, it's just wrong. It's an abuse of the legal process."
It's the sequel to the music industry's war on digital pirates, and the margins of Hollywood are exacting revenge like some twisted Sweeney Todd. Most of the accused are likely guilty, and the attorneys going after them say the cyber-thieves are simply getting what's coming to them. But, in a turn that's more tragic than comic, many innocent Internet surfers are serving as legal cannon fodder while moviemakers and their lawyers line their pockets with plunder.
Admittedly, John Doe 2,057 knows a thing or two about BitTorrent. Working with computers, it's hard not to. The latest in peer-to-peer, or "P2P," file-sharing, Torrents, as they are known in techie vernacular, are staggeringly popular. With more than 100 million monthly users — more than Hulu and Netflix combined — Torrent file transfers account for 20 to 40 percent of all Internet traffic at any given time, according to BitTorrent Inc., the San Francisco company that developed the technology.
"I have friends at work who download," Doe confesses. "They said they have Netflix, but some of the movies they want aren't streaming — they're only on DVD. With downloads, they said, you can get movies that aren't even in the theaters yet."
For better or worse, BitTorrent has made it easy to swap a DVD-quality feature film or a musician's entire discography. Created in 2002 by a San Francisco computer programmer named Bram Cohen, the technology is much different than Napster and its descendants, LimeWire and Kazaa. With these earlier applications, files were transferred directly from one person's hard drive to another on a centralized network. BitTorrent, on the other hand, divides the workload among dozens of users, each of whom shares fragments of the file that are combined like puzzle pieces when the download is completed. In essence, it creates a unique network, known as a "swarm," dedicated to sharing each specific file. The more people exchanging data, the faster the download happens.
As the attorneys for Imperial Enterprises put it in Doe 2,057's case, BitTorrent causes "rapid viral spreading" of their copyrighted porn. But Shahi Ghanem, executive vice president of marketing for BitTorrent, is quick to point out that the technology is merely a file-sharing protocol, not a cohesive network like its P2P ancestors. "We at BitTorrent have as much to do with [piracy] as Google or Comcast, the companies providing the Web browser and Internet connection," he says. "We don't condone or support any form of piracy or copyright infringement."
The piracy is made possible by websites that host links to BitTorrent "trackers," which direct users to people sharing the copyrighted content they hope to acquire. The Sweden-based Pirate Bay, to name one well-known example, is a repository for innumerable Torrent trackers, which provide access to movies, music, books, software and more. These trackers, as their name suggests, keep track of the IP addresses participating in the swarm.
To make their sprawling cases against thousands of John Does, the attorneys who represent the scorned movie producers connect to a tracker and identify as many IP addresses as possible, along with the date and time they joined the swarm. Then comes the tricky part: convincing a federal judge that all those BitTorrent users are in cahoots.
"People come and go from the swarm," explains Chris Ridder, a copyright attorney and a fellow at Stanford Law School's Center for Internet and Society. "They pop in and share for a while, then they're done sharing, and they leave. It's not like everybody got together in a smoke-filled room and decided to rob a bank. It's considerably different."
The pirate chasers in Doe 2,057's case contend that "because of the nature of the swarm downloads...every infringer is simultaneously stealing copyrighted material." Hence, they should be considered co-conspirators who can be sued in any court in the country where a single download took place.
"Thousands of people are lumped together in one lawsuit just because, basically, a few lawyers have decided they can be," says Rebecca Jeschke, a spokeswoman for the EFF. "They're suing where their firms are, where it's easiest for them — not where the alleged infringement occurred. It can make it really hard for people to defend themselves."
Major Hollywood studios, however, have yet to file a single John Doe lawsuit. The RIAA spent millions on their piracy crusade and suffered a series of public-relations meltdowns, such as the time they targeted a dead woman. (Her name was Gertrude Walton, she died at age 83, and her daughter told reporters that the dearly departed didn't even own a computer.) Meanwhile, the two largest John Doe suits, with a combined 48,905 defendants, were filed against alleged pirates of The Hurt Locker and Sylvester Stallone's The Expendables, both owned by independent studios.
Not coincidentally, both pictures underperformed at the box office. Traditionally, they likely would have been reliable earners at the video store, with The Hurt Locker cashing in on the cachet of winning multiple Oscars (the film did net more than $32 million in DVD sales) and The Expendables relying on a star-studded cast to woo renters. But these days, both films can easily be obtained for the low, low price of free with just a few simple mouse clicks.
"There's been a sea change of how content and information is exchanged," says Lory Lybeck, a copyright attorney from Seattle who's led several high-profile legal clashes against the RIAA and now defends John Does. "Copyright owners and distributors of that content can either adapt to the new technology or they can adapt in a mutant way. They can sue and exact hundreds of thousands of dollars for something they could only charge $20 for previously. All they need to do is find out who is sharing that content, and all of a sudden it becomes a gold mine."
Porn studios are the ones who have sued the majority of John Does. They too have been hit hard by piracy: One industry expert estimates that adult-entertainment revenues shrank 40 percent between 2004 and 2009.
"It's a helpless feeling to know that when you put a title out, it's free everywhere within an hour," says Jason Tucker, head of anti-piracy efforts for Private Media Group, one of the largest international porn distributors. "It happens so fast — in the blink of an eye. And it's not just here; it's everywhere for anyone with a computer, all over the world, instantly. People either don't realize or don't care that there's work and money that went into making that product."
Rodney Githens got his John Doe letter in the mail in January, a month before he was scheduled to ship out to Afghanistan. The 45-year-old North Carolinian retired from the army as a captain shortly after completing a tour of duty in Iraq in 2004 but was headed to Kabul to work as a civilian contractor. Ironically, Githens was accused of downloading The Hurt Locker, which tells the tale of an army Explosive Ordnance Disposal unit in Baghdad.
"I just didn't have a lot of interest in watching that," Githens says, his Southern drawl audible all the way from Afghanistan during a Skype chat. "I was kind of there. I didn't need to see it. I don't have any of the Torrent software installed on my computer. My son, who is nineteen, said the same thing. He allowed me to go through his computer, and I didn't see anything. I'm fairly confident it didn't happen at my house."
Githens hired an attorney and was prepared to fight, but the case against him and all but a handful of his 24,583 fellow John Does was eventually dropped. According to the EFF, the judge in the case was perturbed by the slow progress of the proceedings and "set up a schedule for the timely dismissal" of the Does who had already been identified via subpoena. The soldier, though, says he never had any intention of forking over a settlement. "I feel like if you pay, it marks you as a victim, and they'll come right back a second and a third time," he says, echoing a claim made by several John Doe defense attorneys. "It's a never-ending well for them. It's a fishing expedition."
Coincidentally, the men casting the nets are veterans like Githens. Thomas Dunlap and Daniel Grubb are the founding partners of Dunlap, Grubb and Weaver. Both men are active National Guardsmen, and Dunlap, a former New York stockbroker, spent 33 months in Afghanistan as an embedded trainer with Afghan security forces.
In January 2010, Dunlap and Grubb trademarked the name US Copyright Group. Later that same month, they filed the first large-scale copyright lawsuit against John Does in U.S. history, subpoenaing information about 749 IP addresses that had allegedly downloaded The Gray Man, a low-budget horror flick about a grandpa who cannibalizes children. Once they had the names and addresses of the presumed pirates, the lawyers mailed them a notice bearing the newly minted, official-looking seal of their US Copyright Group. The message made it clear that the John Does could do things the easy way or the hard way: fork over a settlement or risk getting slapped with a $150,000 judgment in federal court, plus the cost of attorneys' fees.
The tactic was not original. Starting in late 2007, a British law firm began suing thousands of alleged pirates in Europe and squeezing them for settlements. The scheme fell apart when two of the lawyers were convicted of six counts of professional misconduct, including charges that they were "acting in a way likely to diminish trust in the profession" and knowingly targeting innocent victims.
Nevertheless, the US Copyright Group broke new ground in American courts. Over the next five months they proceeded to sue nearly 15,000 John Does in Washington, D.C. — about 9,000 more people than had ever been sued for copyright infringement in all federal courts combined in a single year.
It remains unclear exactly how much cash the pirate hunters have reaped from their John Doe scheme. The settlements are private agreements, and the attorneys are not obligated to divulge their earnings. That being said, it's conceivable that a movie studio and their attorneys could turn a handsome profit on a film without ever selling a single ticket or DVD. In the case of The Expendables, for instance, if even half of the 23,322 John Does involved each doled out a $3,000 settlement, the total haul would have been nearly $35 million.
Needless to say, copycat attorneys have clamored to get in on the lucrative action. Chief among them is John Steele, a Chicago divorce lawyer who was the first to file John Doe suits on behalf of porn studios. By his own estimate, in the past year Steele has sued roughly 15,000 John Does in 110 separate cases, and he plans to file another 50 cases in the next month. Steele has no qualms about the fact that most people he goes after are unlikely to defend themselves, even if they are not guilty, because of the embarrassing nature of the films involved. "I don't feel embarrassed about watching porn," he says. "I don't think you should have to hide it. I think you should be embarrassed about a federal lawsuit being filed against you for stealing. Whether it's adult content or not, the issue is theft."
In December 2010, four months after he began targeting John Does, the website Ars Technica called out Steele for plagiarizing passages from the legal filings of Dunlap, Grubb and Weaver, and earlier this year the firm threatened to sue Steele for $25,000 for creating the Media Copyright Group, a name the D.C. attorneys claimed was "confusingly similar" to their US Copyright Group. Dunlap did not return multiple calls seeking comment for this story; Steele says the quarrel was resolved amicably. "We had a nice conversation and realized this is silly," he says. "We're actually good friends now. That firm did some good pioneering stuff, and then we kind of took it to another level."
Steele certainly isn't the only imitator out there. West Virginia lawyer Kenneth Ford created the Adult Copyright Company (motto: "Hardcore Protection"), and last July a north Texas attorney named Evan Stone established the Copyright Defense Agency. If Stone's name sounds familiar, that's because he shares it with a popular male porn star: Indeed, the guy representing the creators of Debbie Does Dallas in copyright cases has the same name as one of the leading men in Debbie Does Dallas...Again.
Reached by phone recently, Stone says he is no longer filing John Doe suits on behalf of adult studios, but for ordinary independent filmmakers only. He explains that he is an aspiring director himself and fighting to keep the movie business profitable. To that end, he believes his work has already made a difference. "Anecdotally, I've had friends tell me their friends aren't using BitTorrent anymore," Stone says. "They're looking for new ways to pirate shit because so many people are getting caught by guys like me."
Then again, Stone acknowledges that his operation suffered a serious setback when judges in Texas began to toss out his cases, ordering him to go after pirates individually rather than en masse. With a mandatory $350 filing fee per case, the prospect of suing 1,337 John Does, as Stone once did, is significantly less palatable when it costs $467,950 up-front. "Obviously they got fed up with the adult cases, and so they shit-canned all of those," Stone grumbles. "That's just how it is. The same thing happened in West Virginia."
Steele too has had a handful of John Doe cases derailed in northern Illinois by Judge Milton Shadur, who in one court filing criticized the attorney's legal strategy as "shoot first and identify his targets later." Steele says he has since shifted course and is now suing Does in significantly smaller groups, and only in jurisdictions where alleged downloads have occurred.
But where Stone and Steele's cases have fizzled, attorneys using nearly identical tactics in other jurisdictions are still being granted carte blanche to sue Does by the bushel.
Most cyber-pirates are prosecuted in the nation's capital. More than 85,000 John Does are currently caught in ongoing litigation in the district's federal court, according to the EFF. Not only is D.C. the home court of Dunlap, Grubb and Weaver, it is also the jurisdiction of Judge Beryl Howell, who worked as a lobbyist for the RIAA from 2004 to 2009, during the peak of the organization's anti-piracy campaign.
In February, Howell issued a ruling that is now frequently cited by pirate chasers as proof that their tactics are valid. Howell shot down a request by the EFF, the ACLU and Public Citizen, a national nonprofit consumer-advocacy organization, that she not issue subpoenas for the IP addresses of 1,062 John Does accused of downloading the children's movie Call of the Wild. Among other points, the judge asserted that the Does "cannot demonstrate any harm that is occurring to them" before their names are disclosed to the attorneys who are suing them.
David Abrams, a fellow at Harvard Law School's Berkman Center for Internet and Society, points out that while Howell's ruling is legally sound, she ignores the reality of the situation on this particular point. "None of these lawyers expect to get to court," Abrams explains. "They want a subpoena so they can send out that settlement letter. I suspect it works well on people who download the movies and just as well with people who didn't, because of the threat of being exposed for downloading something like transsexual porn."
Naturally, Howell's background has prompted skepticism about her impartiality when it comes to ruling on John Doe cases. She was paid $415,000 to lobby on the RIAA's behalf as the executive managing director and general counsel at Stroz Friedberg LLC, a consulting firm, according to the Center for Responsive Politics and the implu Corporation, a company that tracks spending by lobbying firms.
"There is certainly bias," says Cashman, the Houston copyright attorney. "As soon as we saw [the ruling] and saw who she was, we knew she should have recused herself."
Through a court spokesperson, Howell declined an interview request for this story, citing the fact that she is currently presiding over an ongoing John Doe case.
Sergeant West is a 38-year-old ex-Marine living in Michigan. She works as a financial planner and maintains a rental property to help make ends meet. She includes free Wi-Fi in her lease agreement, so when she got a John Doe letter in March accusing her of downloading the Maverick Entertainment Group film Smile Pretty (a.k.a Nasty), it didn't take much deduction for her to figure out that her tenant was the likely culprit.
"I called Comcast first; I said, 'This isn't me! This is a mistake!'" recalls West, who requested a pseudonym because she fears retribution from the attorneys who filed the lawsuit against her. "The guy basically said, 'Sorry, lady, you're on the chopping block. The account is in your name. You can try to fight it, but they're probably going to fry you.'"
Though West, Githens and Doe 2,057 all offer compelling claims of innocence, the vast majority of those accused are likely guilty as charged. They are identified by their IP address, a method that, while far from foolproof, is reliable enough to be used in criminal prosecutions for more serious cyber-crimes such as child pornography and hacking.
There are, however, several key differences between the way the FBI goes about nabbing a pedophile and the way trolling copyright attorneys pursue their prey. For one thing, says Mike Freedman, a computer-science professor affiliated with Princeton's Center for Information Technology Policy, the folks in law enforcement have a strong incentive to make a tight case. They must convince a judge to issue a search warrant and then turn up evidence that the illegal files actually are on their suspect's hard drive. "If their false-positive rate is high, they waste a lot of man-hours," Freedman says. "It's in their best interest to get good data. They are working with limited time and resources."
But because an innocent John Doe is just as likely to pay up as a guilty one, unscrupulous copyright lawyers might not be so meticulous in their search for targets. "The end game isn't to win a lawsuit for some of these people," says Quentin Boyer, spokesperson for Pink Visual, a large porn distributor that opposes the John Doe suits. "It's to exact a settlement. And if you're not worried about prevailing, maybe you're not worrying about the accuracy of your data."
Pirate hunters are cagey about the exact methods they use to trace IP addresses ("It's a secret-sauce kind of thing," says Steele), but experts such as Freedman suspect it is a relatively simple process. Either the attorneys themselves or a cyber-security firm contracted for the task connect to a swarm for their client's copyrighted file and start sharing.
"Essentially, they think we're one of them," Steele says. "They try to give us copyrighted info not knowing we're gathering that for our clients. They're giving us all the proof we need, just handing it to us."
For some judges, a list of the IP addresses that allegedly participated in a swarm is enough to order Comcast and other Internet service providers to provide the names of their customers. "Comparing it to a criminal case," Freedman says, "it's like you walk into a bad part of town where there's a substantial amount of drug use, and you see lists on the ground with the addresses of suspected drug users. Would that be enough to issue a subpoena, without any further verification?"
The gaping flaw in the system, according to Freedman and other experts, is that not every IP address involved in the swarm is sharing copyrighted data. In fact, not every IP address corresponds to an actual person. In 2008, a team of researchers from the University of Washington's Computer Science and Engineering department set out to determine if it is possible to draw the ire of pirate chasers without sharing a single copyrighted file. By adding their IP addresses to a BitTorrent tracker — but never uploading or downloading any data — the academics received more than 400 complaints ("takedown notices," filed under the Digital Millennium Copyright Act), including several that were addressed to their office printer.
"Some monitoring agencies don't verify that a user reported to be sharing a file actually is sharing that file," Michael Piatek, Tadayoshi Kohno and Arvind Krishnamurthy write in their paper, Tracking the Trackers. They conclude that "practically any Internet user can be framed for copyright infringement today."
The savviest Internet users can also use "spoofing" technology to scramble their IP address or make it appear as though they are surfing the Web from a computer halfway across the globe. For a network-security expert such as Doe 2,057, this is the most galling aspect of his case: If he'd really wanted to pirate porn, he could have done it undetected.
"There needs to be a reasonable effort to prove guilt," he says. "They're accusing me because of an IP address? Please. I could go on the Web right now, and in a few seconds I could make it appear as though my IP address was coming from Russia. It's that easy."
In addition to being the leading source for BitTorrent news, the Dutch website TorrentFreak publishes articles such as "5 Ways to Download Torrents Anonymously." But even Ernesto Van Der Sar, the pseudonymous author behind the site, doesn't mince words when asked how many of the John Does are responsible for cyber-theft.
"On average, 95 percent or more of the cases are accurate," Van Der Sar says from his home in Amsterdam. "Someone in that household probably downloaded that file. But if you have four persons in a home, it's basically impossible to determine who downloaded what. And there's also the issue of open Wi-Fi and shared networks."
Of course, the lawyers leading the charge against the John Does argue that leaving a wireless network unprotected is like being an accessory to a crime. "It's like if you take a pistol, put ammunition in it, leave it in the front yard, and somebody uses it to shoot somebody," Steele says. "Yeah, you're going to be held responsible for that."
Unfortunately for Steele, the law doesn't quite work that way. At Harvard's Center for Internet and Society, Abrams points out that the accused John Doe is supposed to be the person who clicked the button that initiated a download. But it's cost-prohibitive for misidentified John Does to go to court and prove it was somebody else behind the keyboard.
"If people say, 'I didn't do it,' that's perfectly OK, but you have to get in front of a judge and jury," Abrams says. "That's a very expensive proposition. Unless somebody wants to prove a point, it's not going to make economic sense to take it to a jury."
While numerous John Does have fought to remain anonymous by asking a judge to "quash" the subpoenas filed against their IP addresses, thus far only one person has had the resources and inclination to wage a full-scale counterattack against his accusers. In February, a Massachusetts man named Dmitriy Shirokov filed a class-action lawsuit against Dunlap, Grubb and Weaver on behalf of himself and 4,576 other John Does accused of downloading a German-made film titled Far Cry. Shirokov is seeking $5 million in damages from the attorneys, arguing that they engaged in "fraud and extortion" by pressuring him for settlement payments and intentionally overstating the possible repercussions of not paying up.
"It's clear that this is an injustice, and our client wanted to see something done about it," says Shirokov's attorney, Dan Booth. "The statutory damages — what they are threatening people with and saying, 'If you don't settle, we may go after you in a court of law seeking these damages' — they reference cases that just don't apply. They have no relationship to what they could actually get in this case. They're not playing it straight. The law doesn't support their claims."
Dunlap, Grubb and Weaver are fighting back in court, and the outcome of the case against Shirokov and his co-defendants is still pending. On that front, Washington, D.C., Judge Rosemary Collyer allowed Dunlap, Grubb and Weaver to subpoena cable companies for information about the John Does but later remarked in court that she regrets the decision.
"It's clear to me that not all the named people are actually sitting at the computer downloading," Collyer told Dunlap and his colleague Nicholas Kurtz during a hearing last June. "I'm feeling a little bit like I was terribly naive, to be perfectly frank, when you filed this, and I just blithely signed the subpoena and headed you off into the wilderness. And I think I did that wrong. I think we need to rethink how you're going to go about this."
On July 7, the five largest Internet service providers and the heavyweights of the movie, music and TV industries announced that they have devised a novel strategy to combat piracy: Educate, don't sue.
An alphabet-soup coalition — which includes the RIAA, MPAA and IFTA — will monitor BitTorrent file transfers and report offending IP addresses to cable companies. Under a new "Copyright Alert System," the ISPs will then send a warning to the offending subscriber stating that their account "may have been misused for content theft" and that "consequences could result." The potential pirates will also receive information about "the abundant sources of lawful music, film and TV content." The ISPs will issue up to six such warnings before they resort to "mitigation measures," such as throttling back the bandwidth of the infringing IP address.
The underlying theory behind the alert system is that many parents or people with open wireless networks are likely oblivious to the rampant piracy being perpetuated on their dime, and "subscribers have a right to know when their Internet accounts are being used for content theft." According to the website for the new Center for Copyright Information, recent studies conducted in Norway, France and England found that up to 70 percent of users stopped downloading illegally once notified that their ISP was on to them.
However, attorneys on both sides of the John Doe battle are skeptical about the plan. "It's a step forward," says Stone, the north Texas pirate pursuer. "But it's also a bit of a fucking joke."
"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.
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."