This article originally ran in the February 2014 issue of AVN magazine.
The author of this column is an attorney—actually licensed in three states and having been admitted as an out-of-state lawyer in another dozen or two. One thing good lawyers hate is bad lawyers. This article is about the bad lawyers. They are greedy, lazy, bottom-feeding scumbags. This is about trolls; bad trolls fall into the latter category.
If you are not aware of the fact that piracy has destroyed the adult movie industry, one would wonder how you ever found out about this magazine. In this author's opinion, pirates should be strung up. The Digital Millennium Copyright Act has authorized tube sites to give away your product. Pirates should be sued and their pockets emptied. Moreover, the attorneys who sue them and win judgments should be compensated reasonably. However, the attorneys suing pirates also should act within the rules.
Many attorneys sue pirates and act entirely within the rules. Marc Randazza, Gill Sperlein and, hopefully, this author, can be counted among those. The activities in which the likes of those people engage are laudable. When they sue pirates, they are looking after their clients’ interests ahead of their own.
However, not all attorneys play by the rules. Outside the adult industry, there was Righthaven. Righthaven entered into a “Strategic Alliance Agreement” with Stephens Media, the company that publishes the Las Vegas Review-Journal, Las Vegas’ principal newspaper, along with a similar arrangement with other newspaper publishers. Righthaven was not at all in the publishing business; nor was it an author. It was a copyright troll.
Righthaven was exclusively in the business of suing people—nothing more; nothing less. It filed lawsuits—often of doubtful merit and without warning—against bloggers and the like for infringing Review-Journal and others’ copyrights. Righthaven’s technique might be described metaphorically as a “stickup”: “Either you pay or you will need to spend more to hire an attorney to defend you.” The poor scrub has no choice.
The problem was that the “Strategic Alliance Agreement” did not assign the entire copyright to Righthaven, meaning that Righthaven did not have standing to sue to enforce the copyrights. A number of judges totally went off on Righthaven and the attorney that engineered it, bringing it to its knees.
A few attorneys around the country—attorneys who never had represented the adult industry—decided that they could capitalize on the porn-piracy situation. They filed lawsuits without doing enough research, looking for a quick buck.
You likely have seen the articles about the judges who have clobbered these shotgun attorneys with sanctions; there may even be sanctions by the Bar Association. Suffice it to say that the courts have found that they weren’t playing by the rules.
When done properly, a “John Doe” copyright is a legal sniper rifle. Before filing suit, the ethical plaintiff and his lawyer will carefully zero in on a handful of IP addresses, all located in the same vicinity, perhaps a small city or a college campus, from which infringing material has been retrieved. Then, a suit is filed against perhaps 20 “John Doe” defendants—“John Doe” because there is no way to know who owns the IP address, only the ISP carrier. That allows a subpoena to the ISP, perhaps Verizon or AT&T, requiring it to disclose the owners of the particular IP addresses. Then the lawsuit can proceed.
Unfortunately, some attorneys have been filing suits without doing so much homework. Not a precision sniper rifle but a blunderbuss.
In one instance, the attorney named 1,017 “John Doe” defendants. The judge, incidentally, was an 84-year-old senior member of the federal bench in Urbana, Illinois. Does it strike you that this judge might not have a whole bunch of compassion for the rights of “pornographers”? Apparently, that did not occur to the lead plaintiff’s counsel, Chicago attorney John L. Steele. The judge declined to allow the expedited discovery so as to facilitate the putative 1,018-party smut trial, thus frustrating the case. VPR Internationale v Does 1-1017, Case No. 2:11-cv-02068-HAB-DGB (C.D. Ill., April 29, 2011). The plaintiff lost his attorney's efforts and the $450 filing fee.
But when they (Steele, the Prenda Law Firm, et al.) took their act out west, things went south. Federal Judge Otis D. Wright II in Los Angeles threw the book at them:
“Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle—for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow starving attorneys in this electronic-media era to plunder the citizenry.”
The judge ordered them to pay over $81 Large in attorneys’ fees to the people that they thought they would collect money from. Ingenuity 13 LLC v. John Doe, 2013 WL 1898633 (C.D. Cal., May 06, 2013). An appeal is pending that will take a long time.
It is difficult enough to go in front of a federal judge, who necessarily will be conservative by our standards even if a Democratic appointee, asking for pity on a “pornographer” who has been victimized by piracy. These bad trolls make those laudable efforts yet more difficult.
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.
