article

04.02.11

Behind the Porn Piracy Crackdown

The adult industry is cracking down on thousands who illegally download porn—and betting they'll pay up rather than have their smut-surfing habits exposed in court.

Mark A., 29, illegally downloads porn. A lot of porn. His favorite performer is Kristina Rose and he has a substantial collection of pirated films like Kristina Rose: Dirty Girl and Kristina Rose is Slutwoman. It's not just about the money that a free download of a pirated movie saves him—it's the anonymity of not having to plug in his credit card and personal information.

"I feel pretty anonymous," says Mark. "I think I fly under the radar. I am a little fish."

But according to John Steele, one of the lawyers representing the adult-film industry, "For this kind of downloading there are no little guys. Everyone is doing it together."

And if lawyers like Steele have their way, the people who download porn illegally will pay together, too. Steele is a foot soldier in the industry's new crackdown on those who illegally snap up free porn online. He and the industry want you to know that they know exactly who you are. In fact, they might be in court right now trying to get a hold of your name, perhaps in West Virginia, Illinois, Texas, or California, places where many of the mass lawsuits have been filed since the crackdown unofficially began in October, 2010.

While the efforts are still in their infancy and, according to critics, won't pass legal muster, that isn't stopping the porn industry from adopting (and trying to improve upon) the tactics of the music industry, which has used lawsuits over the past several years to try to stop people from illegally downloading songs online. The porn industry wants to try something similar—and improve on the strategy in two key ways.

The desire to settle swiftly and quietly outside of court is what the porn business is counting on, because too many people illegally download porn to sue them all individually.

The first is to add the threat of humiliation, something that wouldn't work with music but could work quite well with porn. Even the most confident porn consumers don't want to be named in a public lawsuit that discusses their smut-surfing habits. The porn industry understands your plight, and in general, the lawyers representing porn want to first give you a chance to pay a settlement to avoid your day in court—in other words, you give them X amount of money, and your dirty little habit can stay a secret.

Afraid that this approach makes the lawsuits feel like a shakedown, the porn business is reluctant to talk about their efforts for attribution. "The 'Pay them their two dollars' theory makes people settle as a nuisance suit, which makes us look like scumbag patent squatters, except we are morally correct and they're not," says the general manager of one large adult-film company that has enlisted a law firm currently preparing to file this type of litigation.

The desire to settle swiftly and quietly outside of court is what the porn business is counting on, because too many people illegally download porn to sue them all individually, which is where the second key difference comes in. While the music industry targeted specific illegal downloaders with lawsuits, adult-industry lawyers are arguing to judges that they should be allowed to sue thousands of suspected "John Does" simultaneously. Armed with ISP addresses that help them identify exactly which computers porn is being illegally downloaded to, the industry wants to corral them all into one suit, and then give them the option to settle. "If they are all stealing the same movie and helping each other steal (by sharing files)" says John Steele, "they are all in it together."

To detractors, these porn industry attorneys are filing lawsuits that are not intended to be fought in court, but are rather part of a business model meant to generate cash settlements by trading on people's fear of public embarrassment. After years of crippling business losses from illegal downloading, the adult film industry late last year began filing these mass lawsuits against thousands of alleged pirates.

Corynne McSherry is intellectual property director at the Electronic Frontier Foundation, which has been fighting the porn industry (through amicus briefs, tracking, and legal assistance) in a number of these cases. She estimates that the adult industry has sued about 80,000 people over the past year. "They sue hundreds or thousands of people at once, and the ways they are doing it is a misuse of the law," she says.

The industry, for its part, has Big Brother on its side. Its lawyers claim you are not anonymous on popular file-sharing sites like Piratebay (where copyrighted content is known to be widely shared) and you can be tracked in great detail (including time and date, your location, which computer in a house is used, and the specific content downloaded and shared.) "There is no anonymity on the Internet," says attorney Michael W. Fattorosi. His company, Xpays, set up to represent porn copyright holders, got permission from a judge on March 4 to seek the names of 843 "John Does" he alleges have downloaded a pirate version of the Paris Hilton sex tape.

Fattorosi admits his victory was a rare win in what had been a series of defeats for the industry's mass-lawsuit approach. A spreadsheet prepared by EFF shows judges dismissing 40,000 defendants from such lawsuits. "I think we have the winning argument, but I don't know why we were the lucky ones who a judge agreed with on the issue," Fattorosi says. So, not pressing his luck, a week after winning the rights to subpoena the 843 Paris Hilton fans, on March 11 XPays issued the following press statement:

"XPays is pleased by the ruling of the Court that we can subpoena the names and addresses of those persons that illegally obtained our content. However, we are also very mindful of people's privacy and would like to offer amnesty to anyone that would like to voluntarily come forward to resolve their case anonymously and with confidentiality.

XPays is not pursuing this lawsuit with the hopes of embarrassing anyone or causing them any amount of shame. We merely want to protect our content. At this time anyone who has downloaded a free copy of the HotelHeiress.com Paris Hilton Sex Video aka One Night in Paris, can resolve this matter for $500.00. XPays believes this to be a very fair offer and one that is a substantial discount from any that will be offered in the future."

Do the math: 843 multiplied by 500 equals $421,500. And that's just the 843 "John Does." Many others who downloaded the pirated tape are not connected to the complaint. Yet no one yet knows the names of the John Does, so some of the people not named might be motivated to pay the $500 to make sure no possible connection between them and pornographic movies lands in the legal system.

Another example is This Ain't Avatar: XXX, a porno flick parody of the Oscar-winning blockbuster. According to EFF, on October 17 a lawyer representing an adult company simultaneously sued 3,120 John Does for downloading it illegally. The next day the same lawyer, Evan F. Stone, filed suit against 1,106 alleged pirates of the flick, and a few days later another batch of 2,618 people were sued. Of this number, according to the EFF spreadsheet, a judge recently severed all but three John Does, one for each suit, from the case.

McSherry thinks the porn industry's new wave of porn litigation is on borrowed time as it works its way through the courts. "This current model of mass litigation is so new it is still in the starting stages. And I think it is going to stay in the early stages in most cases because frankly, I think in most cases the real goal here is to use the legal process to get names and addresses to send people settlement demand letters. I think that is a frightening and dangerous business model."

But John Steele, dubbed the "Pirate Slayer" by an adult industry trade magazine, disagrees. He says the model could work, and claims that it already has. "I've been doing this for about six  months now and I was preparing for it for a long time before that. I would not be doing this if I did not make money." While he would not disclose how much he has earned in settlements, if anything, he notes that many of his cases dismissed on the EFF spreadsheet were people he requested be removed, meaning they may have settled or they should not have been named in the first place.

As for Fattorosi of XPays, he sees the lawsuits as only a stopgap. "Ultimately the industry is going to have to create product that feels like something you should buy and that is superior to what you can steal. That is the long term solution to piracy."

Meanwhile, Kristina Rose, the porn star who captured the hearts of Mark A. and countless other men, has developed a more personal way to deal with fans who illegally download her work. "I'll block them on Twitter until they go buy a DVD and send me photos of them with the box cover," she says, adding that a lot of them actually do. "If you don't buy it, I am out of work, and then you don't get to see my naked ass anymore."

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Richard Abowitz covered Las Vegas for over a decade as a senior writer and editor at Las Vegas Weekly. For many years Abowitz wrote Movable Buffet blog and print column for Los Angeles Times. In addition to covering Vegas, Abowitz has been writing about music and culture for Rolling Stone since 1996. Abowitz blogs at GoldPlatedDoor.com.