Time Warner Says No to Massive Outing of ‘Does’ in LFP Lawsuit

DALLAS—Time Warner Cable did not actually refuse to turn over identifying information about users of its internet service accused of illegally downloading Hustler’s This Ain't Avatar XXX, but the offer by the internet service provider (ISP) to provide ten disclosures a month amounted to pretty much the same thing, as far as Evan Stone, the Dallas-based attorney who orchestrated the LFP lawsuit and several other similarly themed John Doe cases, was concerned.

"If you're a pirate in these times," Stone told CNET Monday, “TWC is the ISP to have.”

Stone wanted to push back against the decision by TWC, but he told CNET that LFP asked him to back off, and that in light of their disagreement over tactics, the two have decided to part ways. According to LFP, however, it was Stone's "unprofessional" tactics that persuaded them to end the contract in the first place.

LFP v Does 1-635 was filed Sept. 17 in U.S. District Court in Dallas, and like other recent lawsuits targeting anonymous users of BitTorrents, the assistance of ISPs is an essential ingredient in the success of the cases, or at least the financial settlement negotiations that take place between the law firm and the end users accused of pirating copyrighted content. If the ISP refuses to cooperate, as happened in this case and has also happened in mainstream cases, the studio is unable to connect the IP address associated with the alleged piracy to a human being.

The pushback by TWC in the LFP case cannot have been totally unexpected by Stone, however. Earlier this year, according to ZeroPaid, the cable operator and ISP told the Washington, D.C.-based US Copyright Group—in John Doe cases involving the indie movies Steam Experiment, Far Cry, Uncross the Stars, Gray Man and Call of the Wild 3D—that it could not reasonably handle more than 28 IP address lookups per month.

“TWC told the USCG that the thousands of IP address subpoenas it submits are on top of the hundreds per month it already receives, virtually all coming from law enforcement, and some being ‘emergency requests in which death or serious physical injury are at issue.’ It said responding to all of the USCG’s subpoenas would require it to ‘redirect substantial resources away from compliance with law enforcement requests,’” reported CNET.

The USCG cases involved more than 20,000 alleged infringers, far more than the 635 anonymous users sued in the LFP case. That TWC offered Stone and his 635 alleged infringers ten lookups a month seems reasonable on its face considering the accumulating burden on the ISPs to do lookups, even if it would have taken 63 months to complete the task.

According to LFP President Michael Klein, however, the shifting focus from the alleged pirates to putting pressure on the cable companies was not a strategy that appealed to the iconic adult company, which has a television division and continuing global ambitions that require it to be a partner rather than an antagonist with companies like Time Warner.

In pointed comments made late Tuesday while he was still on vacation, Klein said that as much as LFP is determined to maintain a professional relationship with cable operators, it was ultimately their frustration with Stone’s aggressive PR tactics that led them to the decision to end the contract with him.

“He wanted us to put pressure on the cable operators, but it’s not our goal to go after them,” Klein told AVN. “We want to look at ways to go after pirates, and we thought this strategy might work out, but the reason why we terminated with Stone was because of what we considered to be his unprofessional tactics.”

Klein added that while Stone’s ongoing pressure to increase the use of PR tactics was off-putting to LFP and finally fatal to the lawsuit, it was the manner in which the attorney dealt with LFP’s decision to end the contract that was particularly galling.

“We terminated the contract quietly and then he immediately goes to the press. Why would he do something like that?” asked Klein, rhetorically, adding that Stone’s decision to do so “proved our point and justified the reason why we [parted ways].”

For his part, Stone expressed to CNET a characteristic self-confidence regarding a legal strategy that requires a willingness to play hardball not only with alleged infringers but also with ISPs that remain resistant to exposing the identities of thousands of their customers. It is a resistance that makes increasing sense in a market in which more and more people are flirting with the idea of cutting the cable.

ISP push back is but one obstacle facing lawyers employing the massive John Doe strategy, but Stone remains adamant that he will succeed where others have failed. Just ten days after a West Virginia judge issued a series of orders that upended the seven copyright infringement lawsuits brought by attorney Kenneth Ford and his Adult Copyright Company by ‘severing’ all but one of the John Doe defendants in each of the cases, Stone insisted to CNET that the same thing will not happen to him.

“Stone said the suits he has filed stand a better chance than [mainstream law firm] Dunlap or Ford's,” reported CNET. “While he saluted their attempts, Stone was critical of their methods. He said there wasn't enough evidence in Ford or Dunlap's filings to sufficiently tie the defendants together. The firms also filed in unfriendly courts, according to Stone.

“In the complaints he filed, on behalf of such adult-film studios as Vivid Entertainment and Mick Haig Productions," the article continued, "Stone said he shows that all the defendants helped each other obtain pirated copies of the same movie.”

Stone added that with the sole exception of LFP, all of his other clients want him to “go to the mat” in his battle with not only the alleged infringers but also the ISPs.

"I was born for [these kind of cases]," Stone said. "I put myself through school doing database programming and I earned a film degree before my law degree. I honestly think it's my tech background that has saved me from making the same mistakes [Dunlap and Ford] made. Either way, this trend of BitTorrent litigation is a long way from over."

Time will tell, of course, whether Stone’s birthright is indeed the factor that allows his cases to prevail when the others hit a legal brick wall, or whether the Electronic Frontier Foundation and others are correct in their assessment that these massive John Doe lawsuits represent a violation of due process for the thousands of thus-far-anonymous end users who remain utterly ignorant of the fact that they are being collectively rounded up by Evan Stone and other copyright posses.