Porn industry sues anonymous Hampton Roads users

LEGAL challenge

These lawsuits are being challenged by the “John Doe” defendants and civil liberty advocates who contend the industry is bullying people.

THE SUITS

Some of the cases have been dismissed, but many have settled out of court, with the “John Does” typically paying $2,000 to $3,000 to make the suit go away and maintain their anonymity, according to an attorney close to the case. No cases have gone to trial.

By Tim McGlone
The Virginian-Pilot
© September 4, 2011
NORFOLK

More than 100 Hampton Roads residents, identified only as John Does, are being sued in federal court here, accused of illegally downloading pornography.

And one John Doe is fighting to keep his identity private.

Pornography producers and distributors have started a nationwide campaign, much like in the music industry, to stop illegal downloads of XXX movies. The industry says it is losing millions of dollars a year as titles such as “Amateur Allure – Zoe” and “Cuties 2” get passed around the Internet for free.

Lawsuits targeting at least 20,000 people across the country have been filed. The first two cases in the Norfolk federal court landed here this summer.

These lawsuits are being challenged by the “John Doe” defendants and civil liberty advocates who contend that the industry is bullying people.

They have had some successes. A federal judge in Illinois refused to grant a subpoena that would have forced Internet service providers to identify 300 John Does named in a lawsuit there. The judge called the suit “ill-fated” and “ill-considered.”

And a federal judge in Alexandria earlier this year refused to allow lawyers to obtain the names and addresses of the Internet users for more than 100 downloaders of porn. The case was ultimately dismissed.

Adult pornography is one of the biggest moneymakers on the Internet. Several tech websites list annual porn revenue in the billions. Some wonder why the industry is going after illegal downloaders for a few thousand dollars each.

“We think these suits are unfair. They’re cutting corners, and they’re not giving people due-process rights,” said Rebecca Jeschke, a spokeswoman for the Electronic Frontier Foundation, a civil liberties group that has been helping defendants in these cases.

“These suits are often filed with the assumption that they’re not going to go to trial,” she said. “It’s about settlement.”

Jeschke and others on the John Does’ side blame the lawyers more than the industry for this rising tide of lawsuits.

John Steele of the Chicago law firm Steele Hansmeier is the chief lawyer filing these suits around the country.

He said he enlisted Virginia Beach attorney Timothy Anderson to file the two suits here on his behalf.

Anderson did not respond to messages seeking comment.

“We have about 95 percent of the cases,” Steele said in a phone interview. “We basically saw that there was a real problem with piracy of pornography.”

He said the porn industry has filed about 135 such suits against more than 20,000 people, most of whom have remained unnamed in court proceedings.

Steele said some of the cases have been dismissed but many have settled out of court, with the Does typically paying $2,000 to $3,000 to make the suit go away and maintain their anonymity. No case has gone to trial.

Steele represents an industry that is largely shadowy. Porn companies and their owners are difficult to locate.

One suit in the Norfolk U.S. District Court was filed against 30 John Does by Hard Drive Productions Inc., which lists a home office in Phoenix. Google maps show the site at that address as a small ranch house surrounded by cactuses. The owner, listed in public records as Paul Pilcher, did not respond to a phone message.

Public records say the company has one to three employees and annual revenue of more than $2 million. No website could be located (except for other companies with similar names).

Little could be found on the second company that is suing 77 area John Does. AF Holdings, the plaintiff, is a limited liability company with headquarters in the Caribbean. No U.S. office or website could be found.

One John Doe in the Hard Drive suit filed an anonymous motion to keep his name out of the record. He asserted in the motion that he probably would lose his job and be subject to “blackmail and extortion risks.” A judge has not ruled on the motion yet.

The Electronic Frontier Foundation and John Doe defense lawyers have complained about the tactics used by Steele and other lawyers. Such a large dragnet is bound to scoop up innocent people. Often cited is the case of a grandmother in her 70s accused of downloading porn; the case against her was dropped.

“The error rate is considerable,” said Mike Meier, a Washington, D.C.-area lawyer handling a number of these cases.

But Steele said new software, which he said he helped develop, significantly lowered the error rate.

“It’s one of the things we looked at very carefully.”

Meier acknowledges the country’s long-standing copyright laws but said the lawyers’ tactics have been too aggressive.

“In my opinion, they are bill collectors for the movie industry,” he said. “They’re basically extorting money.

“Do I like their methods? No, not really,” he said. “But I don’t know what I would do if the shoe was on the other foot.”

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com

As always, please consult with a Virginia attorney about legal issues raised in this article.  Every situation is unique.

Tucker Griffin Barnes – Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.
Charlottesville, Virginia
434-973-7474

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