LOUISEVILLE, KY—Normally, critics of end-user litigation by media companies refer to plaintiffs (and their attorneys) as copyright trolls, but in the 12-page complaint filed last Thursday in a federal court in Kentucky, Jennifer Barker's lawyer, Kenneth J. Henry, consistently refers to the five defendant studios—Patrick Collins, Malibu Media, Raw Films, K-Beech and Third Degree Films—as, collectively, the "pornography purveyors," a presumably derisive label that linguistically deprives them of copyright holder status.
The semantic slap is intentional. From start to finish, Henry accuses the studios of engaging in a conspiracy "to shakedown users of file sharing technology such as BitTorrent as well as individuals who have never used any file sharing technology."
The lawsuit claims that in doing so, the companies have committed federal wire fraud crimes defined in 18 U.S.C. § 1343, which, according to the complaint, "makes it unlawful to use wire transmissions in a scheme or artifice to attempt to fraudulently obtain money from another." The action also seeks class action status for "others similarly situated, and cites violations of the RICO statute under 18 U.S.C. §1962 "for which [the plaintiffs] should be awarded treble damages in such amount as they may prove and their reasonable attorney fees pursuant to 18 U.S.C. §1964."
The wire fraud charge is justified because, according to the complaint, "the pornography purveyors begin to shakedown these individuals by telephone," and "18 U.S.C. §1343 makes it unlawful to use wire transmissions in a scheme or artifice to attempt to fraudulently obtain money from another."
The fraud allegation is supported by the plaintiff's belief that "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. In fact, if the individuals could be proven to have downloaded the pornography unlawfully from the Internet, the pornography purveyors could collect civil statutory damages of $150,000 for a willful infringement such as they allege, yet they settle for $1,000-$5,000."
The complaint alleges that Jennifer Barker was subjected to such a "shakedown" call in late May, when she "was contacted by an individual named Stephanie Hansen, who represented that she was associated with a law firm that was seeking to settle a lawsuit in which Ms. Barker had been named as a defendant."
The complaint further states that "Hansen works for an entity created by the Defendants herein whose sole purpose is to extort settlements from individuals such as Ms. Barker. Ms. Hanson is located in Agoura Hills, California, and is not employed or otherwise associated with any law firm, particularly the law firm that filed the bill of discovery lawsuit purportedly pertaining to Ms. Barker."
After accusing Barker of illegally "downloading several titles from a web site, X-Art, on information and belief owned by Malibu Media, LLC, during the month of December 2011," the complaint claims that "Ms. Hansen demanded that Ms. Barker pay money to settle the lawsuit 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." After refusing to pay, Barker says that Hanson and others continued to call her at work and at home.
The complaint includes six counts, including a violation of federal RICO statutes in a conspiracy to "use improper litigation tactics and by hiring an entity to 'negotiate settlements' on their behalf to the lawsuits, even though the lawsuit in which Ms. Barker was named and many others were named did not seek any damages whatsoever.
Count 2 alleges common law fraud, saying "Defendants, through their agents, falsely represented that Ms. Barker and others similarly situated were parties to a lawsuit pending in the Florida courts and/or elsewhere. Defendants further falsely represented to Ms. Barker and others similarly situated that they had used BitTorrent to download pornography from specific web sites. Defendants, through their agents Ms. Hansen and others, failed to inform Ms. Barker and others similarly situated that the lawsuit referenced in their telephone calls was a bill of discovery lawsuit in which no damages were sought."
Count 3 alleges common law defamation for "falsely accused Ms. Barker and others similarly situated of illegally downloading pornography from the Internet."
Count 4 cites intentional infliction of emotional distress for attempting "to use the distress felt by Ms. Barker and others similarly situated to fraudulently extract money from them."
Count 5 claims unjust enrichment on the part of defendants for "obtaining money to which they are not entitled from many of the members of the Plaintiff Class," and states that "Defendants should be required to disgorge all funds so obtained from members of the Plaintiff Class."
Count six seeks punitive damages because the defendant's actions were allegedly taken "with actual malice and/or recklessly in disregard for Ms. Barker's and others' similarly situated rights and property."
The size of the class in question is alleged to be somewhere in excess of 200,000, defined as "individuals throughout the United States who have been subjected to the unlawful extortion attempts of the Defendants herein. The Class period begins on July 1, 2007 and continues through the date of judgment. A subclass of individuals has also been identified as "those individuals who have not infringed Defendants' copyrights but who have paid sums of money to 'settle' lawsuits brought by the Defendants."
Despite the fact that the infringement of adult content on Torrents is a very real problem, even Wired seemed to take pleasure in the news that the studios are being sued by an accused infringer, stating, "We’ve written about the scams repeatedly." Unlike the end-user litigation brought by the RIAA back in the day, added writer David Kravets, "the movie lawsuits appear to have been designed from the start as a for-profit endeavor, not as a deterrent to piracy." That assessment was also recently shared by a judge overseeing another Malibu Media lawsuit, who referred to the litigation model as an "extortion scheme."
AVN has contacted defendant's litigation counsel for comment, but has received no resonse.
The complaint can be accessed here.
