< New Lawsuits Target Illegal Movie Downloaders


Friday, June 25, 2010

BOB GARFIELD: In recent years lawsuits again individuals downloading copyrighted material have become rare, largely due to backlash against the deeply unpopular legal tactics of the Recording Industry Association of America. The RIAA's sue the pants off of college kids campaign was suspended in 2008, traded for a strategy of pursuing software companies, such as Limewire that create programs enabling piracy. But this year the lone downloader is in the crosshairs once again. A consortium of enterprising intellectual property lawyers styling themselves the US Copyright Group has sued more than 14,000 defendants, not alleged downloaders of music but alleged downloaders of movies. To give you some perspective, the US Copyright Group has sued nearly as many individuals in five months as the RIAA did in five years. Nate Anderson of the blog Ars Technica says this new round of lawsuits isn't a means to curb piracy, so much as one to monetize it.

NATE ANDERSON: That's right. They go to independent filmmakers and they tell them we will go out, find people who are sharing your films, send them these settlement letters, demand that they pay us 1500 to 2500 dollars, and if they don't we can take them to court. We will split all that money with you on a contingency basis. I think the thing that concerns some of the people I've talked to about this approach is that if you went to a lawyer to try to contest them, even if you were innocent, it would cost you more than if you just settle the money. So people have to make these sorts of decisions.

BOB GARFIELD: And guilty or innocent, I guess it feels like a shakedown.

NATE ANDERSON: Well, that's how many people feel. In the settlement letters that we have seen, the lawyers do promise that if they take these people to court that they will go after the most damages possible, 150,000 dollars per infringement. That was something that the recording industry was never willing to do. In the only two court cases that went all the way to trial, the RIAA would never set that sort of dollar figure on it, and always left it up to the juries.

BOB GARFIELD: Now, it kind of reminds me of those TV commercials and subway posters trolling for plaintiffs on personal injury, asbestos cases and so on. Is this kind of ambulance chasing?

NATE ANDERSON: It's clearly different from what the recording industry was trying to do. If you ever talked to the recording industry about their lawsuits, you'll know that they were insistent that it was about education, that they wanted people to understand that sharing this material violated U.S. copyright. It was not about making money. And, in fact, they have always said that their campaign, which was five years long, and went after 18,000 people in the U.S., was a money loser. This appears to be very different from that.

BOB GARFIELD: So how does this law firm go about identifying potential culprits?

NATE ANDERSON: They have partnered with a firm called Guardalay. What they do is monitor bit torrent downloads. They can see which internet protocol addresses are sharing parts of these files, and then these cases are filed, 2,000, 4,000, in some cases even 5,000 anonymous users at a time. And the lawyers ask the courts to help them turn these IP addresses into real people's names and addresses.

BOB GARFIELD: And the internet service providers have to comply?

NATE ANDERSON: If the subpoenas are valid, the ISPs would turn over the information of their subscriber who is using that address at that particular date and time. Time Warner Cable has been objecting to the subpoenas on the grounds that they're unduly burdensome, and they are trying to get the courts to either quash these subpoenas or cut them back radically.

BOB GARFIELD: Now, the lawyers are also running into another obstacle at a D.C. district court where a judge has asked them to explain under what basis they're suing 4500 John Does at a time. If the lawyers are obliged to start suing people one at a time, instead of en masse, are they going to be out of business?

NATE ANDERSON: Certainly, it would put a tremendous cramp on what they're trying to do right now, because when you have to file separately, you have to pay a Federal filing fee for each one of those cases. You have to file individual paperwork and respond separately to motions in every particular docket. They have already filed 14,000 cases against these anonymous defendants in 2010 alone.

BOB GARFIELD: Let's just say that the US Copyright Group is permitted to continue business as usual, maybe half of the money they recoup goes back to the producers of the film who themselves have been victimized by piracy. Isn't this kind of just fine?

NATE ANDERSON: There's two real concerns with the approach. One is the amount of money involved here. I think it's debatable whether being hit out of the blue with a demand to pay 1500 dollars for maybe one film you've downloaded or you could face 150,000-dollar penalty, you know, is really a proportional response to what happened. The other question is whether everyone is, in fact, guilty. And it's clear that that's not the case. So then the question is how many people were innocent, and how many of them just decided to settle, rather than dig up a lawyer and pay several thousand dollars just to try to prove their innocence.

BOB GARFIELD: Because they say it may have happened at their IP address but not while they were at the computer; they didn't download anything.

NATE ANDERSON: I've heard from some people who have said they've gone around and interrogated every member of their household. Everyone has denied it. They can't find any evidence of these files on their home computers. And I think it points to the basic issue in all of these sorts of prosecutions which is that an IP address does not identify a person but a machine, usually somebody's router. That router can be sharing their internet connection with just about anyone, especially if it's hooked up to a wireless network. And it's very difficult to know if your son or a friend of your son or, you know, a visitor or the person next door in the apartment ever used that connection to do something illicit.

BOB GARFIELD: All right, Nate, thank you very much.

NATE ANDERSON: Great, thank you.

BOB GARFIELD: Nate Anderson is a senior editor for the blog Ars Technica.