New litigation campaign quietly targets tens of thousands of movie downloadersTue Mar 30, 2010 @ 10:29AM PST
By Eriq Gardner
EXCLUSIVE: In what may be a sign of things to come, more than 20,000 individual movie torrent downloaders have been sued in the past few weeks in Washington D.C. federal court for copyright infringement. A handful of cases have already settled, and those that haven't are creating some havoc for major ISPs.
The lawsuits were filed by an enterprising D.C.-based venture, the US Copyright Group, on behalf of an ad hoc coalition of independent film producers. So far, five lawsuits have been filed against tens of thousands of alleged infringers of the films "Steam Experiment," "Far Cry," "Uncross the Stars," "Gray Man" and "Call of the Wild 3D." Here's an example of one of the lawsuits -- over Uwe Boll's "Far Cry."
Another lawsuit targeting 30,000 more torrent downloaders on five more films is forthcoming, we're told, and all this could be a test run that opens up the floodgates to massive litigation against the millions of individuals who use BitTorrent to download movies.
The genesis of this legal campaign occurred in Germany when lawyers from the US Copyright Group were introduced to a new proprietary technology by German-based Guardaley IT that allows for real-time monitoring of movie downloads on torrents. According to Thomas Dunlap, a lawyer at the firm, the program captures IP addresses based on the time stamp that a download has occurred and then checks against a spreadsheet to make sure the downloading content is the copyright protected film and not a misnamed film or trailer.
For the past couple of years, using the technology, content producers have been taking to German and UK courts to identify and sue pirates using torrents. Jeffrey Weaver, another lawyer at the firm, claims those efforts have been successful. One example cited is a limited-release German film whose producers recovered $800,000 through litigation. Gurdalay and its German lawyers agreed to let the US Copyright Group try out the system in the United States, where BitTorrent users have gotten a pass up until now.
Before doing so, however, Dunlap talked with the IFTA, which wouldn't explicitly endorse the litigation. Dunlap also talked with the MPAA and other big studios, which expressed interest but wanted to see proof that ISPs would be cooperative. And so, in the past few weeks on behalf of some low-key indie films, the first lawsuits were filed.
"We're creating a revenue stream and monetizing the equivalent of an alternative distribution channel," says Weaver.
Right now, there may be three big reasons why the movie industry hasn't been more aggressive against individual pirates.
First, there may still be lingering debates about the general wisdom of a strategy that targets individuals rather than the technology companies that make infringement possible. In December, 2008, after suing some 35,000 individuals, the RIAA announced it was abandoning mass litigation against individual song pirates. Many believed the campaign to be a PR disaster.
Second, there are tricky issues involving technology and liability. BitTorrent users only receive and host small packets of data at a single time. In addition, there are questions about IP addresses being an identifier of a pirate since users can steal or borrow another's IP address to commit file infringement.
Third, and perhaps most importantly, ISPs present a roadblock as they are less than enthusiastic about turning off customers by handing over sensitive information to copyright holders.
To get past ISPs, a copyright holder needs to file a "John Doe" case and get a court to issue a subpoena that orders the ISP to hand over information. This can be costly. According to Dunlap, ISPs are charging $32 to $60 for each IP address account requested. ISPs cite the cost of notifying the account holder and giving them opportunity to file a motion to quash the subpoena.
When the U.S. Copyright Group filed its recent lawsuits and approached AT&T and other ISPs for account information, the lawyers say they were stunned at the reaction. "Their subpoena compliance group said, 'We thought we had shut this (approach) down with the MPAA before,'" says Dunlap.
The difference between the MPAA's past approach and the new one being offered by the US Copyright Group could come down to numbers. Weaver says the MPAA took a less targeted approach going after a smaller sampling of infringers in a single suit for multiple films, to send a message that would hopefully resonate to a much larger crowd. In contrast, Dunlap and his partners are using the new monitoring technology to go after tens of thousands of infringers at a time on a contingency basis in hopes of coming up with the right cost-benefit incentive to pursue individual pirates. The firm is following in the footsteps of lawyers in the UK who have crafted a business out of being IP cops.
So far, the US Copyright Group says that one ISP has cooperated, handing over 71 names and addresses. These individuals will be sent settlement offers. Eight of those cases have already settled. The other less cooperative ISPs are in the midst of fighting in court or reaching out to their respective customers.
The US Copyright Group plans to issue a press release soon touting the success of this program. The lawyers are also traveling to the Festival de Cannes in May with hopes of convincing other producers -- and perhaps major studios -- to try their luck suing hundreds of thousands of pirates.