BitTorrent motion alleges legal business model targeting porn downloaders

Imagine receiving a letter from an attorney accusing you of illegally downloading a cinematic classic like, say, The Wadfather or The Man Who Blew Too Much, but offering you a chance not to be accused of this offense in public court for a few thousand bucks. Would you take the deal? Plenty of people do. However, a BitTorrent motion filed in Colorado is taking on the practice, which one attorney refers to as "business-model litigation."

"The BitTorrent lawsuits are part of a systemic effort to build a business model based on weak allegations of copyright infringement and the inducement of fear," e-mails Christina Saunders, who filed the motion, accessible below, for one of 26 John Doe defendants targeted by Patrick Collins, Inc., a company owned by the prominent porn director of the same name. (His titles include Cum Rain Cum Shine 2 and Sodomania 32.) "In my mind, they constitute as an abuse of copyright law, the judicial system, and they threaten the integrity and respect for the courts."

Patrick Collins.

In response, Jason Kotzker, attorney for Patrick Collins, Inc., says he can't speak at length about the case until after there's a ruling on Saunders's motion. But "in the interim, I can tell you that peer-to-peer copyright infringement in the aggregate is a major problem for my clients," he writes via e-mail, "and like any other copyright holder, they will protect their rights when infringement is discovered."

How does the approach work? David Kerr, a Saunders colleague and copyright-law expert who represented chronically ill hobby blogger Brian Hill after he was targeted by controversial Las Vegas firm Righthaven LLC for unauthorized use of a Denver Post photos, lays things out this way.

"After being hired by, say, a production company, a law firm, or a company it hires, will go into BitTorrent networks to find out who's downloading a certain movie, and then they'll harvest IP addresses," he notes. "They might come up with a list of twenty to 20,000 addresses -- and then they slap all of them into one lawsuit and file it with a court. They say, 'We think these people are infringers, but we don't know who they are. So we want you to allow us to send subpoenas to Internet service providers like Comcast to get the subscriber information that corresponds to that IP address.

David Kerr.

"Once the court gives the law firm permission, the attorney sends Comcast a subpoena... And after they turn over the names, the attorney sends a letter to these John Doe defendants that usually consists of something like, 'Pay us money, or we're going to sue you.' And the settlements usually range from $3,500 to $5,000 a pop."

Just because an individual's IP address came up in such a search doesn't mean he or she has actually downloaded the flick in question, Kerr stresses. "I've probably gotten 200 calls on these types of cases, and a lot of them involve open wireless. If my neighbor jumps on the wireless and downloads a movie, it's going to show up on my IP address. That's happened to clubhouses, coffeehouses, neighborhood associations. And also, IP addresses can be faked. That's called spoofing, and the number could correspond to somebody else -- which is why some seventy-year-old grandma may get a letter saying, 'You downloaded porn.'"

Of course, many people swept up in such cyber-dragnets actually did download the movie in question, and that makes them even more susceptible to coercion, Kerr believes. "Let's say you're living in the suburbs and your wife opens the letter and says, 'Why did you download Teen Anal Nightmare 6?'

"These letters are like invoices. You send out 1,000 letters, and half the people freak out and pay you -- and if they each pay you $5,000, it doesn't take an idiot to figure out that could be pretty profitable pretty quick. You could take a small, pornographic movie made for tens of thousands of dollars and potentially turn it into millions."