Back in September, we pointed out what a busy summer it'd been for Denton lawyer Evan Stone, as he kicked off a crusade against BitTorrent users who'd been illegally sharing porn movies. After three months, he had filed a few hundred suits right here in the Dallas federal court, alleging piracy of five adult films -- among them Der Gute Önkel and, happily, Debbie Does Dallas.
Back then, Stone (not that Evan Stone, right), told us it would be open season on porn pirates from there on out in Dallas, in part because this court doesn't require film producers to hold a copyright for the film they're suing over, so long as they've at least filed for the copyright.
Three months later, sure enough, he's filed suit against another 8,150 John Does (if you're scoring at home, that's a total of 9,686 suits so far) for sharing such films as Larry Flynt Productions' This Ain't Avatar XXX, Barely Legal #100, Young Harlots Foreign Exchange and, just in time for Christmas, Adult Source Media's Hot For Teachers.
While Stone's earliest suits crawl along through court, the porn industry has circled its steamy wagons to protect against piracy, some Internet providers have refused to give up customers' addresses, and online freedom groups have pushed back on behalf of the Does.
Paul Alan Levy, a Washington-based lawyer with Public Citizen, is on the team Judge David Godbey appointed to represent John Does in the Der Gute Önkel case. He says naming thousands of anonymous defendants at once might be efficient for Stone, but it's tough on individuals who want to defend themselves. In one case, he says, a defendant said Stone's settlement offer was the first they'd heard of the film, and guessed someone else had been sharing it over their Wi-Fi network. According to court records, another John Doe says his ISP confirmed that his IP address doesn't even match the one listed in the suit.
Stone has dropped handfuls of defendants from the suits since July, either because they persuaded him of their innocence -- or because they just paid up. Levy says, and Stone confirms, that defendants get an initial settlement offer of $1,500, then a follow-up offer of $2,500 and a reminder that they'll be publicly named in the suit if they don't reply. (
Levy Stone filed this follow-up offer in the Önkel case.)
"It's possible that what's happening here is pure extortion, and it's possible that what's happening is just enforcement of the copyright laws," Levy says. "The business model is bring lots of cases, settle them without taking them to trial. We don't know yet whether these folks are willing to go to trial."
A filing along with one suit in Dallas sheds light on how a Las Colinas business tracks down IP addresses. In it, Eric Green with Copyright Defense Agency and Remove Your Content describes how he tracked IP addresses from the 65 folks who served up Lucas Entertainment's Missing, which he then provided to Stone. (Ars Technica describes Green's process here.)
Over the last few months, one more challenge has developed for Stone: getting ISPs to cough up names and addresses to match the IP addresses. Without their cooperation, he's got nowhere to send his settlement letters, and while he says Comcast has been especially cooperative, other major players such as Time Warner Cable, Verizon and AT&T have been placing a "really low" cap on the number of names they'll turn over. As CNET reported yesterday, Time Warner's only giving Stone 10 names per month (for all his cases combined), and scrapping their records after six months. Stone says he wanted to fight it in the Avatar case, but Larry Flynt Productions told him to back off, rather than risk their business with Time Warner.
While Stone's been busy in Dallas, thousands of suits spearheaded by the Adult Copyright Company looked, until a couple weeks ago, like they'd make West Virginia another big battleground. That is, until a judge dropped all but one defendant from each of the cases, ruling that just downloading the same film wasn't enough to bind all the defendants together into a single filing.
Stone, though, says that won't matter in Dallas -- "there's a huge distinction," he says, because he's made sure all the defendants named in each of his suits downloaded not just the same movie, but the same torrent file -- essentially, the same copy of the movie, he says. When he brought suits for piracy of This Ain't Avatar XXX, for instance, there were three separate filings -- one for each torrent file of the film. .
Anyway, Stone says blogs that are heralding the West Virginia ruling as the end of copyright trolls like him are missing one big point -- he's not a troll. While a true troll sits on their patent and waits for someone to sue, Stone says, "we're repreenting clients who are actively doing everything they can to actively trying to market and distribute their content."
"I'm not trying to ruin anybody's life," Stone says. "I'm trying to recoup revenue lost to piracy."