The Electronic Frontier Foundation, in friend-of-the-court briefs, says the motivation by the suits "appear to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims."
In the amicus briefs, the San Francisco-based EFF pointed to cases filed by two porn studios — Third World Media and Mick Haig Productions — whose suits share the same tactics by filing mass lawsuits based on single counts of copyright infringement and improperly lumping hundreds of defendants together regardless of where the IP addresses indicate the defendants live.
"Suing hundreds or even thousands of people together en masse, in states in which the vast majority of the accused downloaders appear to have no connection, amounts to a deliberate end-run around their due process rights," said Matt Zimmerman, the EFF's senior staff attorney. "The suits seem designed to ensure that few, if any, defendants will fight back, given the risk of shame from being publicly identified."
Zimmerman, in an amicus brief to the court in the Third World Media case, said that the suits "are consistent with a coordinated strategy of porn industry representatives who have clearly indicated that the coercive threat of public disclosure motivated the recent increase in dragnet copyright cases brought by porn publishers."
In the brief, the EFF keyed in on October's Content Protection Retreat sponsored by Pink Visual. In a story published by Agence France Presse, Pink Visual President Allison Vivas, was quoted as saying that "when it comes to private sexual fantasies and fetishes, going public is probably not worth the risk that these torrent and peer-to-peer users are taking."
Vivas told XBIZ on Monday that the EFF was "completely speculating and grasping at incomplete quotes to attempt to make a point" and that the quotes were taken out of context.
"The statements made by me were in the spirit of educating the end users that the content they access on peer-to-peer sites can and will become the subject of end-user litigation regardless of the content niche and is a risk end-users should be aware of. The statements had nothing to do with litigation strategy or purpose--especially considering Pink Visual has not engaged in End User litigation."
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"First, I’ll clarify that there was merely only 30 minutes at the Content Protection Retreat dedicated to the discussion of end-user litigation and that discussion was merely that, a healthy discussion about the options for copyright holders to go after end-users who infringe on copyrights.
"Additionally, there was discussion of both the risks and benefits of engaging in end-user litigation. The hands-down agreement, as we publicly announced — but the EFF completely disregarded — was the fact that the attendees of the Content Protection Retreat agreed that end-user litigation is not an industrywide-supported strategy, but rather something for each individual studio to consider independently."
In the Texas case, Mick Haig Productions vs. Does, EFF and Public Citizen are acting as counsel for the anonymous defendants after the U.S. District Court at Dallas requested the groups to do so. Mick Haig is suing 670 surfers for downloading German porn movie “Der Gute Onkel,” translated in English as “The Good Uncle.”
EFF and the Public Citizen Litigation Group in a brief filed last week opposed discovery into the Does' identities, arguing that almost all of the defendants appear to be outside the court's jurisdiction.
"Additionally, the case improperly joins hundreds of Does in the same case, jeopardizing their rights to individually defend themselves," Zimmerman said. "Moreover, the lawsuit also flouts 1st Amendment protections mandating that a plaintiff demonstrate its case is viable and that defendants be given notice and opportunity to oppose efforts to reveal their identities."
Also last week, EFF filed an amicus brief in a series of similar cases involving other studios at U.S. District Court in Martinsburg, W. Va. The primary studio in that brief included Third World Media, which sued 1,243 for those who shared "Tokyo Teens."
In those cases, Time Warner Cable has asked the court to quash subpoenas seeking the identities of accused file sharers, also arguing that the plaintiff film companies are attempting to abuse the discovery process.
Zimmerman said that EFF's amicus brief filed last week in support of Time Warner Cable argues that the plaintiffs should re-file their actions against each defendant individually and bring suit in courts that appear likely to be able to properly exercise personal jurisdiction.
"Some producers of adult content have apparently come to the conclusion that filing shoddy mass lawsuits under the assumption that the defendants will be too intimidated to fight back is a good business strategy," Zimmerman said. "It is our hope that courts will quickly see through these tactics and ensure that the right to a fair process is ensured for every defendant."
Attorney Kenneth Ford of the Adult Copyright Company, who represents Third World Media named in the amicus brief, did not immediately respond to XBIZ for comment.
Ford also represents Elegant Angel, Combat Zone, Axel Braun Productions and West Coast Productions in their porn BitTorrent suits.