News & Politics

You Can Get Sued for Downloading Porn? Producers Crack Down by Exposing Illegal Downloaders

A new kind of lawsuit is targeting illegal porn downloads--unsurprisingly, defendants are settling rather than being named.

If you've downloaded "adult entertainment" illegally, or if someone has downloaded these materials from your IP address--or even if you've downloaded said materials accidentally, not knowing you were breaking the law--you could be the target of a lawsuit, one that may be using the implication of public shaming  to prod defendants to pony up a settlement.

The glory days of Napster, this isn't; while there are parallels in the way piracy can decimate an arts industry and the way the industry is fighting back, the reality in our culture is simple. Pirating movies and music does not carry the same social stigma as pirating porn.

Proponents of these lawsuits' methodology claim that not only does such legal action help recoup funds lost by the adult entertainment industry thanks to pirating, but it certainly acts as a deterrent.

But it is legal and ethical to use the implied thread of exposure to push for a settlement?

Our current  age is one in which a person's digital footprint never dies. Countless stories abound of people being turned down for jobs or other opportunities due to racy or scandalous online photos or postings. And being named as a defendant in a lawsuit for downloading the Sasha Grey skin-flick "Illegal Ass 2"--see this document from the Smoking Gun for details on that specific case--would hardly be a promising mark on a person's resume.

Perhaps picking up on this trend, an attorney named John Steele is among those on the hunt to match names to computer locations where these materials have been illegally downloaded. This story at MSNBC profiles Steele and reviews the controversies surrounding his unique legal approach:

In recent months, Steele's Chicago law firm has filed almost 100 federal lawsuits seeking to identify thousands of "John Does" who downloaded pornographic videos in violation of their producers' copyright. Federal court records indicate that none of Steele's cases — in fact, no case of this type ever — has ended with a verdict at trial.

Sometimes, the cases run into roadblocks from skeptical judges over jurisdiction or whether the defendants have been appropriately identified. Others end in settlements for a few thousand dollars from defendants who are relieved that they get to remain anonymous.

Internet privacy advocates and technology writers call Steele a "copyright troll" and accuse his firm of scouring the Internet to track down computers that download pornographic videos, then forcing Internet service providers to identify the computer owners so it can shame those people into writing settlement checks.

On the other hand, not even Steele's harshest critics are going on the record saying any kind of piracy--which some in the porn industry say has decimated producers' revenues by 90% and which has been the subject of anti-piracy PSAs pleading with consumers--is a good idea or should not be fought.

To the contrary, the fight to stop illegal downloads is a big one. The question is how to do so, and the issue is methodology. The approach Steele uses, opponents say, is like going fishing with a wide net, suing whoever is dredged up in its webbing, and counting on embarrassment to reap a dividend.

Beyond the shame factor is the fact that many of these downloads, while they can be traced to an IP address, can't be traced to a specific peson. Open wireless networks, shared computers, and other similar circumstances might mean the person being sued is not, in fact, the person downloading porn.

Take this story from Connecticut, as reported on Ctwatchdog.com:

That is what happened in Claudette’s case. After the movie studio discovered her IP address as having downloaded one of its hard porn movies, it traced her IP address to a provider in Connecticut, who gave up her identity.

Claudette – who for obvious reasons asked that I not use her last name or her town, insists that neither she nor her husband or son downloaded any movies, legally or illegally. At my request she took the three computers in her home to a reputable expert, who after examining them, certified that none had ever been used to download bit torrents.

Claudette says that until recently she had not secured her Wi-Fi with a password, so any of her neighbors could have tapped into her Wi-Fi service and used her IP address to download anything they wanted. So could someone simply parked in her neighborhood.

Claudette's explanation is similar to the legal defense mounted by one of the "John Does" in the Smoking Gun case, a college student who is alleged by the lawsuit to have downloaded the Sasha Grey film in a shared-use dorm room:

The motion to quash--which does not reveal whether the student is male or female--contends that “Doe” resided in a Purdue dormitory “on the date of the alleged copyright violation.” “Doe” was “surrounded by other college students and a roommate who was known to use a router and Wi-Fi connections for internet access.” Additionally, the opportunities for others to access the IP address of “Doe” “is too great to support any correlation” between the student and the “Illegal Ass 2” download.

Tracy Clark-Flory at Salon interviewed people familiar with the way piracy has ravaged the industry who are less inclined to feel pity for the "John Does," however. 

"If Doe 26 wanted their porn consumption to remain private, they should have legally acquired their materials," Lux Alptraum, who edits Gawker Media sex blog Fleshbot, told Clark-Flory. "While I do have some sympathy for wanting one's private moments to remain private, I don't think that shame about sexuality should enable someone to seek special protections when they've committed a crime."

In other words, Alptraum believes that if it's acceptable practice for prosecuting illegal music downloads, then same should go for illegal porn, regardless of stigma. 

There are signs, however, that other methods of fighting piracy across the board--from targeting pirates instead of users,  to getting ISPs themselves to issue warnings followed by "slowdowns" as an alternative to legal action against consumers--might eventually replace these kinds of lawsuits as a more sensible, less scorched-earth approach.

Until then, consumers are advised to protect their WiFi network with a password, and to exercise their right to access all kinds of first-amendment protected content by legal means.

Sarah Seltzer is an associate editor at AlterNet, a staff writer at RH Reality Check and a freelance writer based in New York City. Her work has been published in Jezebel.com and on the websites of the Nation, the Christian Science Monitor and the Wall Street Journal. Find her at sarahmseltzer.com.
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