XXX Litigation: The Seedy Underworld of Copyright
Brett Caraway / FLOW Staff

No doubt many Flow readers can recall the days back in 2003 when the Recording Industry Association of America (RIAA) began targeting average citizens and college students in an unprecedented “sue ‘em all” copyright litigation campaign. The actions of the RIAA produced a substantial backlash because many in the public saw an immense injustice in a powerful industry targeting everyday people who were hardly in a position to mount an adequate legal defense. Though the RIAA campaign against alleged file-sharers officially ended back in 2008 and quickly receded from the headlines, other groups emerged to carry on in the fight against peer-to-peer (p2p) file-sharing. Mass copyright suits have the potential to be quite lucrative after all. Most of these efforts have been directed against BitTorrent users and conducted on behalf of smaller independent film studios. However, another industry struggling to adapt to recent changes in technology is the pornography industry. A number of these firms have entered into the p2p copyright fray in the hopes of securing either large statutory damage awards or large numbers of settlements.

The first of the porn mass lawsuits came in September of 2010 when none other than Larry Flynt targeted over 600 unidentified defendants for alleged copyright infringement. Over the next few months, Larry Flynt Publications (LFP) would go on to target several thousand anonymous BitTorrent users for allegedly sharing the adult film This Ain’t Avatar XXX. The suits were filed on behalf of LFP by Dallas-based attorney Evan Stone. Stone works with a Texas p2p monitoring organization known as the Copyright Defense Agency and is responsible for an enormous amount of p2p litigation in Texas, having filed as many as 16 mass lawsuits in the state on behalf of producers of pornographic films with such classy titles as Der Gute Onkel. Stone has also represented non-pornographic clients like anime distributor FUNimation on whose behalf he filed a mass case against 1337 individuals. Get it? 1337? Leetspeak anyone? Suffice it to say Stone’s sense of humor has not won him many fans in the world of file-sharing.


Hustler’s This Ain’t Avitar XXX

Another attorney filing mass porn copyright lawsuits is Kenneth Ford who heads up a legal group known as the Adult Copyright Group, the self-proclaimed “market leader in fighting piracy of adult content” (( Moya, J., 2010, December 21, Judge Deals Another Setback to Mass BitTorrent Lawsuits, Zeropaid. )). Between September and November of 2010, the Adult Copyright Group filed nine mass lawsuits in West Virginia targeting more than 22,000 unidentified BitTorrent users for allegedly sharing films like Juicy White Anal Booty 4, Teen Anal Nightmare 2, and Relax, He’s My Stepdad 1. Then there is also Media Copyright Group, an organization headed up by a Chicago attorney formerly specializing in family law. In September of 2010 Media Copyright Group targeted 1,200 unidentified individuals for sharing family-friendly films like Meat My Ass. Even the company which exploited the Paris Hilton sex tape is getting in on the profit-from-piracy litigation. Without a hint of irony, the company filed suits in the District Court of Central California against over 800 unidentified defendants for sharing 1 Night in Paris, a film they did nothing to produce and acquired under disputed circumstances (( Ernesto, 2011, January 25, BitTorrent Users Sued for Sharing Paris Hilton’s Sex Tape, TorrentFreak. )).

I do not list the titles of these pornographic films in order to simply demean the plaintiffs or to draw attention away from the substantive legal issues. Certainly the purveyors of adult content are entitled to pursue their copyright interests the same as anyone else. Rather, I would like to point out how the nature of the content can work to the advantage of plaintiffs in mass copyright suits where the odds are already stacked against individual defendants. Individuals targeted for allegedly sharing pornographic films are far more inclined to settle such cases quietly rather than endure the public spectacle of an actual court case. This reality is not lost on pornographers. Consider the comments of Allison Vivas president of the adult company Pink Visual, who commented on the incentive of avoiding public humiliation:

It seems like it will be quite embarrassing for whichever user ends up in a lawsuit about using a popular shemale title. When it comes to private sexual fantasies and fetishes, going public is probably not worth the risk that these torrent and peer-to-peer users are taking. (( Cheng, J. 2010, September 27, Porn studios borrowing from RIAA playbook with P2P lawsuits, Arstechnica ))

In some sense these cases resemble extortion. In January of 2011 gay porn producers Liberty Media, through their subsidiary Corbin Fisher, began publicly touting a $250,000 verdict they had extracted from a single BitTorrent user. On the heels of this announcement the company followed up that they were offering a 14-day amnesty period during which BitTorrent users could email Corbin Fisher and arrange to make a $1,000 payment to the company to avoid ending up as part of a mass copyright suit. At least ten individuals gave Liberty Media the requested money despite no legal action of any kind having been initiated against them. Just the general threat of a mass lawsuit in which they might be caught up was enough to make them pay up.


The Copyright Defense Agency aims to offer turn-key litigation services for the entertainment industry.

Still, it hasn’t been all smooth sailing for the plaintiffs in these cases. Mass copyright suits rely on a legal principle known as joinder by which large numbers of defendants are combined into a single lawsuit based on some common legal or factual question. Without joinder, plaintiffs would be forced to file individual lawsuits thereby dramatically raising their filing costs. And federal judges, resentful of mass copyright suits clogging up their dockets, have not always been willing to grant plaintiffs joinder. For example, in the U.S. District Court for the Northern District of West Virginia Judge Preston Bailey dealt the Adult Copyright Company a severe blow by severing their mass BitTorrent lawsuit. In his ruling the judge argued that simply committing the same type of copyright infringement in the same manner is not a sufficient reason for joinder. Judge Bailey dismissed all of the subpoenas except for one and gave the Adult Copyright Company 30 days to refile individual complaints. Were the plaintiffs to refile each case individually they would incur a $350 filing fee per complaint for a total of $1.8 million. In January of 2011 in the Northern District of Texas the judge overseeing the mass lawsuits filed on behalf of Larry Flynt Publications ruled the plaintiff’s joinder was improper and dismissed the case, leaving attorney Evan Stone and the Copyright Defense Agency with the prospect of filing six thousand individual cases. Stone fared no better in another case targeting 670 unidentified individuals on behalf of pornographer Mick Haig Productions. The case was dismissed in February of 2011 after the Electronic Frontier Foundation and Public Citizen got involved. And the annoyance of Judge Milton Shadur was palpable in his decision to throw out the mass lawsuit filed by Media Copyright Group—the family law practice turned pornographic copyright defender. The judge dismissed the case in its entirety and ordered the plaintiffs to notify everyone targeted with a subpoena of the case’s dismissal.

I draw attention to these legal developments not to make an argument about the validity of adult content producers’ copyright interests. My concern is about the potential for the abuse of court resources. Mounting a defense against industry trade groups is already problematic enough for individual citizens. The costs of legal defenses typically outweigh settlement amounts and the costs of failure in the courtroom can be extreme. Add to this another incentive to settle because of the nature of the content and the process is ripe for abuse.

Image Credits:

1. The Telegraph Online
2. Examiner.com
3. The Copyright Defense Agency official website

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