Downloads can lead to trouble; Motion picture companies go after individuals.
WORCESTER - Imagine your Internet hookup is used to download an adult movie. Next thing you know, you are notified you're about to be sued for copyright infringement unless you pay thousands of dollars to make a potentially embarrassing lawsuit go away.
That scenario has played out for hundreds of thousands of Internet subscribers across the country, as motion picture companies, many of them in the adult film industry, accuse individuals of unauthorized downloads and demand up-front settlements of up to $5,000.
The "or else" is that if the subscriber doesn't settle, he risks involvement in a full-blown copyright infringement lawsuit, facing potential damages of up to $150,000 and, in the case of an adult movie being downloaded illegally, being publicly labeled an Internet porn "pirate."
"A simple click of the mouse could result in months of frustration and legal fees," says lawyer Jeffrey Duquette, of the Worcester law firm of Mirick O'Connell, which is representing clients in several cases in Massachusetts and out of state involving individuals accused of unauthorized movie downloads using file-sharing technology called BitTorrent.
How can Internet subscribers protect themselves? Mr. Duquette and Mirick O'Connell colleague John McInnes offered some simple steps to avoid being exposed to these types of actions:
First, be aware of the content you download, they said. Professionally produced films that are exchanged via BitTorrent often are unauthorized, and downloading them can increase your chance of exposure to a copyright infringement lawsuit.
"Just because it's on the Internet doesn't mean it's free," Duquette said. "A test is, if you can go into a store and buy a movie, but it's free on the Internet, it may be too good to be true. Just because you can click on something, doesn't mean you're clicking on licensed material."
Next, be sure to secure your wireless network. If your wireless router is not protected, a neighbor - or even someone driving past your house - can initiate a download via your Internet protocol address, which, like the mailing address of your home, identifies computers on the Internet. You stand to be the one accused when an unauthorized file-share is traced to your IP address, McInnes said.
Finally, alert users of your Internet account to the dangers associated with downloading movies or other copyrighted content using the BitTorrent protocol, lest you receive a subpoena for something your teenager did, the lawyers said. "If you can't keep your teenager away from the computer," McInnes said, "education is key."
What should you do if you have been accused of unauthorized downloading?
The Mirick O'Connell lawyers suggest calling a lawyer: Directly communicating with the copyright holder on your own, they said, can result in unintentional admissions that can be leveraged to increase the settlement demand. They also advise not ignoring a demand, lest your failure to respond lead to a court entering a judgment against you.
Nationwide, more than 250,000 people have been accused of illegally downloading copyrighted material via BitTorrent, the lawyers said. In Massachusetts alone, 40 cases have been filed, affecting up to 500 people per case, they said.
BitTorrent is a popular peer-to-peer file-sharing protocol that enables users to exchange relatively large movie files as part of a network, or "swarm," the lawyers explained. Because these swarms are publicly accessible, a copyright holder can readily detect the unauthorized sharing of their movies, as well as the IP addresses of the computers involved, they said.
Some copyright holders have taken to suing numerous infringing BitTorrent users in a single mass lawsuit. Because they are initially known only by their IP addresses, the defendants are identified anonymously in the complaint as John Does. The copyright holder then seeks a federal court's permission to gain the identities behind the IP addresses, and having done so, contacts the John Does with a settlement demand, typically less than the cost of fighting the action.
"The pressure to settle is especially acute when the copyrighted work in question is a pornographic video, as is often the case," Sean Karunaratne, executive editor of the Michigan Law Review, writes in a November article in that publication. These mass John Doe lawsuits typically are procedurally deficient, he argues. "Yet, lured by the prospect of extracting tens, hundreds or even thousands of potential settlements for the low cost of a single filing fee, many copyright holders continue to file such lawsuits."
Critics call these mass John Doe lawsuits "copyright trolling."
Mitch Stoltz, a lawyer with the Electronic Frontier Foundation, a digital-rights group, said: "In some cases it looks as if a business is being made of litigation," the goal being less to protect copyright than to "get as many settlements as possible."
Northampton lawyer Marvin Cable has filed close to 40 John Doe suits in Massachusetts, most on behalf of adult filmmakers, accusing thousands of residents of illegal downloads.
"You talk to the executives making these films and they're losing money hand over fist. This is their content. In my opinion, these lawsuits have a huge deterrent effect," he said
CUTLINE: Mirick O'Connell lawyers, from left, Jeffrey Duquette and John McInnes offer some simple steps to avoid legal action for downloading movies.
PHOTOG: T&G Staff/CHRISTINE PETERSON
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|Title Annotation:||BUSINESS MATTERS|
|Publication:||Telegram & Gazette (Worcester, MA)|
|Date:||Nov 25, 2012|
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