WEST LAFAYETTE, Ind.—The case of the anonymous Purdue University student accused, along with over 2,000 other alleged pirates, in a massive John Doe copyright infringement lawsuit is generating a healthy dosage of mainstream buzz, and for good reason.
The suit, filed by Third Degree Films last year, charges him with illegally downloading Illegal Ass 2 from a BitTorrent site while in his dorm. The student’s particular situation contains some salient issues that can crop up in these cases, including a network operator, Purdue, asserting its right and responsibility to protect the kid’s privacy; a wireless network that could have been accessed by someone other than the accused; and the desire of the accused to keep his name out of the papers and certainly out of court.
For some in the mainstream media, such as Salon, the case is really about the “shame” factor being employed in aggressive fashion by plaintiffs’ attorneys as a way to force accused pirates to settle quickly. The implication being that even if an accused defendant wanted to fight the charge in court, the prospect of have their actual identity, as opposed to their IP address, associated with the downloading of a porn flick would be enough to make them want to do anything to make it go away, including pay to settle even if they didn’t do it.
That’s the allegation, anyway.
“As the Electronic Frontier Foundation argues on its website,” writer Tracy Clark-Flory reported Wednesday in an article posted to the Salon website, "’The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.’”
From the point of view of the content producers’ attorneys, the technologies they employ to track and identify the IP addresses of alleged pirates is unerring in its accuracy, and thus they believe that any sense of shame experienced by the accused is appropriate for someone who took something that didn’t belong to them. What might seem outrageous to some is at least understandable when one considers that, like the music and mainstream movie industries before it, the adult industry believes it has been brought to its knees by the rampant pirating of its content. Many producers feel righteously justified in not only going after end-users, but in using any means available to drive the massage home that enough is enough, including “outing” end-users publicly. For better or worse, the shame factor is a tool (or weapon) not available to the mainstream.
The attorneys for the Purdue student are having none of it, however. In a Motion to Quash filed July 12 in the case, Third Degree Films v Does 1-2010, they argue that the move by the student’s identity is confidential, that Doe No. 26, as the student is referred to, “has standing to move to quash the subpoena to protect reputational interests,” that the Northern California court, where the case was filed, “lacks personal jurisdiction over any of the Does at this point,” and that “an IP address is not equivalent to a person or entity.”
The motion also alleges that the student resides in a college dormitory “surrounded by other college students and a roommate who was known to use various router and Wi-Fi connections for Internet access, including the connection assigned to Doe No. 26.
“Discovery is not a game,” the motion states bluntly. “Yet, plaintiffs in these types of cases use discovery to extort settlements from anonymous defendants who wish to avoid the embarrassment of being publicly associated with this type of allegation.”
Of course, this is not the first or last time an individual will makes a stink about being accused of stealing porn online. Nor will it be the last time the media expends multiple inches covering the controversial legal strategy. Just today, the San Francisco Chronicle posted an article to its website with the headline, “Lawsuit says grandma illegally downloaded porn.”
Grandma, who is not taking this situation lying down, is “in her 70s, a retired widow who spends her days doing volunteer work in the East Bay and fussing over her grandchildren. She also downloads porn illegally over BitTorrent,” the paper reported. “That, at least, is the claim in an April lawsuit against her and dozens of other Jane and John Does by a Chicago law firm that's been busily filing similar cases around the country.”
Though similar to the Purdue case, this one involves another adult studio, adult movie and law firm. But all the same issues are in play, including the claim by grandma, when queried by a reporter, that she had no idea whether or not her wireless connection was password protected or not.
Claiming she hasn’t a clue what a BitTorrent is and has never downloaded porn in her life, the widow, who says she has no money for an attorney and will fight the charges herself in court, explained, “I'd say to the judge, 'I have no idea how this happened.' If Sony can get hacked, if the Pentagon can get hacked, my goodness, what chance does an individual have?"
As far as the attorney in that case, John Steele, is concerned, grandma’s pleas are nothing more than white noise. No matter how old you are, there are no excuses.
“In an interview, [Steele] said anyone who fails to secure their Wi-Fi is as responsible for the subsequent crimes or tragedies as a parent who leaves a loaded gun within reach of a 3-year old,” reported the Chronicle.
AVN has written about Steele in the past, and is well aware of his tactics, but the mainstream, with regular help from groups like the Electronic Frontier Foundation, is becoming increasing aware of the John Doe cases proliferating in courts around the country, and the resulting articles are hardly casting a sympathetic eye on stories that include a widowed grandmother accused of greedily downloading porn illegally.
It may well be, as Steele asserts, that only a small minority of people behind the IPs are not actually illegal downloaders, but the unforgiving stance he seems to be taking with all of the accused isn’t doing the industry’s reputation any favors, either.
Sure, grandma and Purdue student can always step up and defend themselves in court, with their names then plastered all over the internet for all to see. On the other hand, maybe there’s a way to separate the wheat from the chaff without having to name all the ingredients.
The Purdue Motion to Quash can be accessed here.
