Claudette, a nurse in Eastern Connecticut, faces an unenviable choice:
Pay as much as $3,000 in an out of court settlement or take a chance that her full identify is revealed if a porn company files a lawsuit against her for illegally downloading pirated pornographic movies from the Internet.
Claudette is one of an estimated 150,000 Americans being sued or threatened with suits claiming they used Bit Torrent web sites to illegally download pirated movies. Other targets include a Florida grandmother whose grandson installed her computer and illegally downloaded movies, as well as the secretary of a Florida condo association in whose name a Wi-Fi was established for the use of all residents.
The suits grow as small movie companies are discovering that they can make more money pressuring consumers to settle out of court than they made from movies like “Nude Nuns With Big Guns -This Sister Is One Bad Mother.”
These legal actions follow the precedent set by the music industry going after those that illegally downloaded copyrighted music.
Under federal copyright laws, each dilatation could bring a $150,000 fine, but it’s the public humiliation that has most targets of the movie suits worried. Each of these suits contain hundreds or thousands of Internet addresses with a request that the judge force the Internet providers to disclose the names of the owners. They also demand the identities from providers like Comcast, Charter, and Cox, which frequently releases the names and addresses of their customers.
That is what happened in Claudette’s case. After the movie studio discovered her IP address as having downloaded one of its hard porn movies, it traced her IP address to a provider in Connecticut, who gave up her identity.
Claudette – who for obvious reasons asked that I not use her last name or her town, insists that neither she nor her husband or son downloaded any movies, legally or illegally. At my request she took the three computers in her home to a reputable expert, who after examining them, certified that none had ever been used to download bit torrents.
Claudette says that until recently she had not secured her Wi-Fi with a password, so any of her neighbors could have tapped into her Wi-Fi service and used her IP address to download anything they wanted. So could someone simply parked in her neighborhood. It’s a common issue as most Internet providers leave it up to customers to set up their own passwords. My neighbor 100 yards from me has a separate IP for his children that is unprotected, and I or any other neighbor could tap into it and no one would know whether I or his children were using it.
Claudette does not know what to do. She authorized me to send her case to the Connecticut Attorney General’s office, which urged people to protect their Wi-Fi systems with secure passwords.
That advice is of course too late for Claudette, who recently started receiving ominous phone calls.
“I was contacted by a woman claiming to be in the litigation dept of a firm in Florida, she was asking if I knew I was being named in a federal lawsuit for copy right infringement. She wanted to know if I would like to settle the case before my name is made public,” Claudette wrote me. “I contacted my IS Provider at the time of the alleged incident and they confirmed that her company requested my identity. ( my server was unsecure at the time, although I thought it was secure). I Googled her company and it is there and googled the law firm (it shows they specialize in property rights) I called the police to start a claim, just in case this is a scam.”
She doesn’t want to pay $3,000 to settle the case and she certainly doesn’t want to be sued for $150,000 where her name would be made public and possibly ruin her career. She can’t afford to hire an attorney in Florida, where the suit would be heard.
She believes that the telephone calls she received from the law firm suggesting that she settle out of court, is simply a way to coerce her to pay up but lawyers for the porn company say they have an absolute right to press their case.
Attorney Keith Lipscomb, with the Miami law firm of Lipscomb Eisenberg, PL, insists that his client Patrick Collins, Inc., says they have a strong legal case against Claudette and the 999 others named in their suit.
“Unless my client enforces its copyrights, the public will come to learn that it can infringe my client’s copyrights with impunity. When that happens, my client fears that it business will suffer more or even fail since its primary product is a movie capable of being converted into a digital media file and downloaded illegally through the internet. The way I see it, PCI’s decision to enforce its copyrights is really no different, except that PCI’s store is on-line, than Home Depot’s decision to prosecute every person who shoplifts from it,” said the lawyer whose client is better known as Elegant Angel Productions, which produces hard-core porn videos. (his complete statements are at the end of the column)
“First, by establishing that the subscriber’s IP address was used to commit the infringement, we have pled a prima facie case for copyright infringement,” he wrote me. “If Claudette wants to claim her Wi-Fi was unprotected and someone else used her IP address to download the movie, she will have to prove it. In response to our prima facie case, a Doe can defend on the basis that its wifi was hacked pleading it in an answer and affirmative defenses,” he said.
“Should that defense ever be raised in a litigation then, among other things, my clients would investigate by verifying how far the subscriber’s wifi signal carries. Most modems don’t project signals far enough to establish a good connection into a neighboring house. If it did carry a signal to another house then we would, subpoena and depose the Doe’s neighbors to ascertain whether: (a) they have a computer, (b) they have internet service, and (c) they have ever used a neighbor’s open access wifi connection. If the neighbors have a computer and internet then there is no reason to hack.”
“Here is the bottom line, however, merely because a Doe could possibly prove that its wifi was hacked and that it was not the infringer does not make my client’s copyright enforcement campaign overbroad, unlawful or unethical. To underscore the point, let me pose the question back to you: What would you do if your revenue model was pay per download and your articles were being illegally downloaded on the scale that my client’s digital movies are being illegally downloaded? I think you would do the same thing. I know I would and I am personally very proud to be defending my client’s copyrights to the best of my ability.”
Attorney Anita Ramasastry, a D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Member of its Law Technology and Arts Group, in a column for the Verdict Internet site this month said these suits are a recent phenomenon.
“This strategy was pioneered last year by the U.S. Copyright Group, a business which represents independent-film producers and which was formed explicitly to make money by suing downloaders. It works for a number of independent film makers and has handled high-profile films such as the The Hurt Locker and The Expendables. The group uses software to monitor illegal downloading activity. The group’s strategy – of listing only IP addresses in litigation, but then seeking names and street addresses in court — is now being mimicked by individual production companies, as well. (Courts may, however, give customers some time to fight the release of their personal subscriber data when it is sought from an ISP.),” she wrote.
It does not appear that any of these mass movie copyright suits have yet succeeded in huge court judgments, only in out-of-court settlements. Defense lawyers in many cases have successfully claimed that the suits are unfair because they lump thousands of people from one end of the country to another into one case, forcing defendants to spend thousands of dollars protecting themselves. They are urging judges to force the movie companies to bring individual cases instead of the mass litigations.
Of course the lack of $150,000 individual judgments is not comforting for Claudette and other respectable people who believe their careers or reputations would be tarnished just by the disclosure of their names.
If you are named in one of these suits, you can contact the Electronic Frontier Foundation for possible assistance.
The best approach is to not download pirated movies and make sure everyone who uses your Wi-Fi understands that. The risks are too high. And of course password protect your Wi-Fi, because your financial information can also be accessed through an open IP.
Anita Ramasastry, a Justia columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Member of its Law Technology and Arts Group. she wrote in http://verdict.justia.com/2011/07/06/recent-lawsuits-allege-illegal-downloading-of-x-rated-films-and-sexploitation-b-movies/
Remember the plight of the Palm Beach County grandmother, and of a condo association that reportedly offered free wireless Internet access to its members. After someone downloaded a film, the association secretary, whose name was on the monthly Internet bill, received a letter demanding $3,000.
Still, even though these suits may be on their way to becoming procedurally fairer, that may take a while, and the smart approach is simply not to download movies illegally in the first place; to make clear to others that your computer is not to be used for that purpose; and to keep your wireless service locked. Otherwise, you may find that a neighbor, babysitter, or even one of your own kids may be triggering monetary liability that will be associated with you via your IP address.
Full statements from the Miami Law Firm
George,
Following up on a voice message I just left for you. Please know that my firm represents Patrick Collins, Inc. (“PCI”) as its attorney in its copyright enforcement campaign. We would very much like the opportunity to explain what we are doing through PCI’s copyright enforcement campaign, why is legal and ethical and indeed absolutely necessary given that PCI’s copyrights are being infringed over 50,000 times a month. Indeed, unless my client enforces its copyrights, the public will come to learn that it can infringe my client’s copyrights with impunity. When that happens, my client fears that it business will suffer more or even fail since its primary product is a movie capable of being converted into a digital media file and downloaded illegally through the internet. The way I see it, PCI’s decision to enforce its copyrights is really no different, except that PCI’s store is on-line, than Home Depot’s decision to prosecute every person who shoplifts from it.
I would also like to discuss with you the nature of my client’s evidence of infringement against John or Jane Does like Ms.. Specifically, my client’s investigator has a server and a software program that monitors the internet. When John or Jane Does, here a person using an IP address assigned to Ms. , enters a BitTorrent swarm of people uploading and downloading my client’s movie, the infringer sends my client’s investigator’s server a piece of a copyrighted movie. That is proof of the infringement. The investigator’s server then merely records the IP address. We then subpoena the Internet Service Provider who was assigned the IP address for redistribution to its subscribers. The ISP then correlate the IP address to the infringer. The server does not transmit any information. This type of evidence has been tested in jury trials.
Further, to the extent you are interested, I will point you in the direction of materials from the U.S. government which indicates that there is a national public policy articulated by the President, Senators and Congressmen which states that fighting on-line infringement is in the nation’s interest because on-line piracy costs U.S. companies jobs, discourages the creative arts, among other reasons. Please know that we certainly have no fear of being reported to police or attorney generals. You should know, however, criminal copyright infringement is investigated by the FBI and the department of justice. State governments do not get involved. Indeed, I have so far been contacted by two police people who both after investigating advised the Doe that the dispute is legitimate.
Finally, I would like to explain to you why my client believes it must, in order to preserve the credibility of the campaign, enter into settlement agreements with every infringer or sue them individually. As I will explain, the Recording Industry Association of America pioneered this type of mass copyright litigation. As the RIAA concluded, and my client also believes, the copyright enforcement campaign will lose credibility if it does not follow this course of action.
All things considered, after we have talked, I am hopeful that the tone of your article will be one that warns the public not engage in online infringement, explains the public policy prohibiting on-line infringement, and explains the consequence of on-line infringement, including the possibility of being sued like Ms.. Any such article would be a real public service and my client would welcome it. Indeed, my client’s strongest desire is that the 50,000 plus people a month that illegally download its movies purchase them legally. If these infringers did so, my client’s revenue would increase by nearly a million dollars a month, most of the pirated movie retail for around $18.75. A million dollars a month is far more than my client can ever reasonably expect to generate from its copyright campaign.
While I am sure your article will be truthful, accurate and un-slanted, as I am sure you will appreciate, my client’s reputation for being a law abiding and ethical corporate citizen is important to it. Accordingly, should an article be written that in any way asserts or implies that my client is doing anything unlawful, unethical or that in any other way distorts the truth, my client will have no choice but take the appropriate actions against the person and entity that so published any such article. We hope and trust that no such actions will be necessary here.
I look forward to talking with you. My contact information is set forth in my signature block below.
With my best regards,
Keith Lipscomb
Lipscomb Eisenberg, PL
2 Biscayne Blvd.
Penthouse Suite 3800
Miami, Florida 33131
George,
To: M. Keith Lipscomb
Cc: M. Keith Lipscomb; c@ymail.com; copyright
Subject: Re: [FWD: As I mentioned Elizabeth Jones in my voice mail to you today I am writing a column about you and your company’s conduct in this matter which has been
Great
How do you know it was downloaded at her home and not by a neighbor through her unprotected wifi ?
Sent from George’s iPhone
It’s an interesting question and a frequent assertion by subscribers/infringers.
First, by establishing that the subscriber’s IP address was used to commit the infringement, we have pled a prima facie case for copyright infringement. In response to our prima facie case, a Doe can defend on the basis that its wifi was hacked pleading it in an answer and affirmative defenses.
Should that defense ever be raised in a litigation then, among other things, my clients would investigate by verifying how far the subscriber’s wifi signal carries. Most modems don’t project signals far enough to establish a good connection into a neighboring house. If it did carry a signal to another house then we would, subpoena and depose the Doe’s neighbors to ascertain whether: (a) they have a computer, (b) they have internet service, and (c) they have ever used a neighbor’s open access wifi connection. If the neighbors have a computer and internet then there is no reason to hack.
Also, we would subpoena the subscriber’s ISP again requesting that it provide us with all of the DMCA notices that were sent to the subscriber, as well as any electronic evidence the ISP has regarding megabit usage. DMCA notices or excessive usage are strong indicators of peer to peer infringement. By way of background, DMCA notices warn that infringement is occurring on the subscriber’s account. Additionally, if we have a MAC address from the ISP, we can correlate the IP address to the specific computer. Further, to enable BitTorrent to work, one has to install what is called a BitTorrent Client, which is a software program, on one’s computer. If that program is on the infringer’s computer then that is strong evidence that the subscriber is the infringer. If the subscriber throws the computer away, however, I am pretty sure that the “I did not do it, I do not have the computer on which it was done” defense was expressly rejected by a jury in one of the RIAA cases. If it was a visitor to the subscriber’s house, the subscriber always has the option to tell us that. E.g., if the kids, grandkids, maid or nanny were visiting on the date in question, tell us and we will figure it between the affected parties.
Here is the bottom line, however, merely because a Doe could possibly prove that its wifi was hacked and that it was not the infringer does not make my client’s copyright enforcement campaign overbroad, unlawful or unethical. To underscore the point, let me pose the question back to you: What would you do if your revenue model was pay per download and your articles were being illegally downloaded on the scale that my client’s digital movies are being illegally downloaded? I think you would do the same thing. I know I would and I am personally very proud to be defending my client’s copyrights to the best of my ability.
Finally, without supporting evidence, you should know, neither my client nor I are inclined to initially believe subscribers who make the assertion that their wifi must have been hacked. Indeed, this defense is such a frequent refrain that if we were to believe it, we’d also have to believe that wifi hacking were extraordinarily rampant. It just doesn’t make logical sense, to us, that this what is going on in the overwhelming majority of instances where the defense is proffered.
One more thing about this campaign, if you are going to a truly in depth article about it, you should look at the other actors in the BitTorrent community. I think if explore the feasibility of suing torrent websites like www.piratebay.com or the software companies that produce BitTorrent Clients you will find that the torrent sites are run by professional thieves who secret themselves in remote locations across the country, and the software companies intentionally design their software so that they can assert that their software has legitimate non-infringing uses. After studying this problem, my client which has a legitimate business need to enforce its copyrights made the decision that there is no good way to do it except for filing claims against end users.
I hope this answers your question. I look forward to reading a fair and balanced article. I remain available to discuss these issues with you via phone or by further email correspondence.
Best regards,
Keith
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From a woman in Washington state sent to me Oct 25:
I was named in one of those lawsuits. I live in Washington State. There is no way me or anyone else did this. My nearest neighbor is 250 feet away. I think that when they asked for the list of IP’s a number was transposed (which they say is impossible). I am 69 years old, on social security $770 a month. There is a medicare deduction of $110. And I have COPD. My advair copay is $57 a month and so I only get it every other month so I can use $57 for food every other month.
I write bible studies and there is no way I did this. No one has been on my computer and my router is protected. My husband has mac notebook that is old and he only uses it to read the news paper. He doesn’t even know how to send an email or turn the computer on, I have to do it. He tried to watch news, but it did not have enough memory to do that and the circle kept rotating and would not load. When I told them this, they said too bad and I can settle out of court for $2380, payable in three payments (beginning the 4th of November this year), I have no savings and bad enough credit that I cannot borrow the money. Mind you a payment is more than my social security a month. I told them I could pay $25 a month, but then I would have to give up my advair and will probably die.
They don’t care. They said I did it or I was responsible for someone who did. I am not saying I am praying for this horrible man to die, but it would not hurt my feelings if he did. He is preying on old people who do not do these things he is claiming.
My computer is used for my writing and for my pictures of my grandkids. That is all.
I wrote the Attorney General of Washington, they sent me an email address of a lawyer that might take the case, but I have not heard back from him. The EFF or whatever it is, will not help either. Anyway, I did record the whole conversation on my phone and the woman ended up yelling and finally hung up.
It seems like it is a scam where they grab a bunch of IP’s that may or may not have done anything and then sue them – there really should be something that someone can do to make them stop.
Margaret
From Dennis In Colorado
I have received notice from my internet provided that they have received a subpoena requiring them to supply name, address, user name and activity log for my IP address.
This is for copyright infringement for downloading a film. I don’t deny that I did that out of curiosity, saw what it was and deleted it. Never the less, I did down load it. From what I see on the internet, including your post, it appears that I will be pressured to settle out of court and pay them a fine. My internet provided said I could notify them if I had an objection and I would also need to file that objection with the court. I would ask, is there any point of hiring a lawyer and filing an objection? What would be my best course of action?
Thank you for a response,
Dennis
From Gary in California
Hi, I have questions about a call that I received and it’s regarding some kind of lawsuit. A lawyer named Bill Higgins called me and said that a website (or some kind of porn company) filed a lawsuit against me for downloading a porn movie from that website. But, as I recalled, I have never downloaded that kind of porn. (It is possible that someone used my IP address to download the porn). The lawyer also talked about settling the lawsuit for $3,200 or going to court. He suggested that I go find myself a lawyer, and he provided me with his phone number and name. I do not know what I should do. Should I ignore it? or do something about it? Please help me out.
I also received a call from Bill Higgins with the same message as above but agreeing to a $1600 settlement.
NO PRIOR letters from ISP or ANY official notices- Just an ‘out of the Blue” phone call.
**Here are the Players**
According to Wikipedia and other internet sources Bill Higgins is an actor/producer of hard core gay (Homosexual) pornography and not an attorney. http://www.iafd.com/person.rme/perfid=williamhiggins/gender=m/william-higgins.htm
Patrick Collins Inc. is a low budget porno movie/Lawsuit generator (See Link for $$Millions Generated)
http://en.wikipedia.org/wiki/Patrick_Collins_(film)
**The Game**
It appears that there is a real lawsuit and they do have some proof, I am not sure it would stand up in court or not because I have not seen reports of clients winning. Not winning because they are settling out of court and not going the distance.
They use prosecuting everyone who shoplifts from Home Depot as an example. Let’s look at that a bit closer. I asked Bill Higgins if (hypothetically) someone associated with them could legally put a movie of theirs out on the interned (Initially seeding the bit Torrent programs) that would be accessible to anyone to download, monitor where the movies/files went and prosecute anyone’s IP who downloaded it and/or transmitted it. His reply is, “Yes, that is possible.”
So, back to the Home Depot example. What if Home Depot installed cameras to video and identify shoplifters, then left the doors open 24/7 with NO EMPLOYEES even present to take your money, making everything appear free for the taking. Afterwards suing everyone for theft. With a 90% out-of-court settlement rate their profits would skyrocket. That $1.50 item now costs you $2500! Would you be guilty? Yes. Was this entrapment? Pretty much. Was the legal system used for legal extortion? You bet. Will a lawyer represent you? Yes, and the cost would greatly exceed the settlement offered. Is this the case with Patrick Collins and Bill Higgins? I don’t know, but as Bill Higgins said, it could happen (hypothetically).
What do you do? Your hands are tied, and if you settle you allow this to perpetuate and that is not the intent of the law. If you do not settle, you risk greater financial losses. What can they get? A judgment. A judgment cannot touch many things you have- research judgments
Additionally, I have spoken to six attorneys (some already representing Defendants of Patrick Collins Inc.) about his and the cost to defend is greater than the settlement. No doubt the plaintiffs know that and it makes the settlement more attractive. So, do you settle?
I feel like these people are a bunch of sewer rats using the judicial system for profit in one hand, and a bunch of lawyers in the other hand. At least the sewer rats will quote you a firm price, the lawyers may financially bleed you to death. [Strictly my opinions]
ONE MORE THING: It is fishy to me that they (Bill Higgins and Lionel Matrin Atty Sugarland Tex,) refuse to use the U.S. Mail for their correspondance. What’s up with that? (Mail Fraud?)
I am in a similar situation.. received a letter from my ISP that provided me access to a document “Notice of Copyright Infringement”….have yet went to Copyright Enforcement Group’s website (www.copyrightsettlements.com) to see “my damages”…
but what if I already own the DVD but was downloading a digital copy via bittorrent client? (dvd burner is broken on computer, besides, last I checked no one has permission to rip physical media onto their computer) is that still an infringement on their rights? or on mine? concenairng “fair use” or what have you….
this is bizarre and very frustrating…
I too have received this letter. Call it what you will but it seems more like extortion to me.
The IP address is mine but the MAC address doesn’t match any device in my house. I have talked to a lawyer but it seems stupid to pay money I don’t have for something I didn’t do.
Everyone has express frustration but no one has actually said what they plan to do. Are most people just settling?
I run a blog dedicated to posting news and views concerning copyright trolls – http://dietrolldie.com/. Many people are settling out of fear and nothing else. Take a look at the facts that the Trolls do not take people to actual trial. They will sure threaten you with that, but it is just scare tactics. I went through the same thing for about a year. The Troll never served me and the case was dismissed. This abusive business model generates hundreds of thousands of dollars and wastes the time of our courts/judges. And don’t let the fancy lawyer talk fool you – they don’t want this to stop, as it is making them (porn producer & Troll) rich. Don’t settle – read and take action.
DieTrollDie
- also see fightcopyrighttrolls.com
Do not be afraid! Do not listen to the lawyer threatening to sue you! Do not speak to the lawyer threatening to sue you!! Do your own independent research, and get a free consult from a KNOWLEDGABLE defense attorney about the possibilities and ramifications of actually being sued in this settlement extortion scheme!!
Keith Lipscomb is in the business of COLLECTING SETTLEMENTS. Lawyers can tell you anything they want, and are not prohibited from lying, in the name of settlement negotiation. This is a defense that is currently being used by the U.S. Copyright Group after they were sued for Extortion, Fraud and Conspiracy in demanding settlements for the movie Far Cry.
The lawyer in the U.K., Andrew Crossley, who was a pioneer in this mass-lawsuit scheme BEFORE U.S. Copyright Group even got started is now bankrupt, broke, out of work, and SUSPENDED from practice by British Disciplinary Tribunal. The Davenport Lyons who came before Crossley were slapped even HARDER.
MAKE NO MISTAKE.
A Copyright Troll’s evidence is FLAWED. An IP Address that is detected as infringing on a copyrighted work has NO DIRECT CORRELATION to the person whose name is on the ISPs monthly bill.
Do not succumb to fear! Do not listen to the people sending you threatening letters! Do not listen to the people making threatening calls! CONSULT YOUR OWN ATTORNEY WHO IS KNOWLEDGABLE AND AWARE OF THIS UNETHICAL BUSINESS MODEL OF EXTORTING SETTLEMENTS WITHOUT SUFFICIENT PROOF OF A CRIME!!
I double DTD and CTVic’s words. After you do your research, I have no doubt that you will be converted from “scared” to “pissed off”.
This blatant abuse of law must end, and it will end sooner or later. 250,000+ victims were targeted in this extortion scheme in 2011 alone in US.
1. Stop being scared. You are NOT in danger. If you don’t incriminate yourself, no troll lawyer can extort money from you. There is simply no court-grade evidence, and that’s exactly why trolls use scare tactics. If they had any solid proof of your wrongdoing, they would simply proceed to trial, but they are scared of such perspective as all their “business” will fall apart as a house made of playing cards. 250,000 Does and how many judgments based on their evidence? 0 (Zero).
2. Ignorance is your main enemy. Educate yourself. Don’t let anyone scare you. Think critically.
3. Don’t feed the troll. Those who pay out of fear and ignorance do a great disservice to the society. That’s what makes trolls’ “business” lucrative.
4. Make a buzz. The lady from the first comment was disappointed by GA’s response, but if hundreds of us bombard General Attorneys, Bar associations and press, we will be heard and troll’s demise will be accelerated.
Good luck to every victim. Stay strong and fight back.
hi , i received similar letter from my ISP saying some production company has filed a federal lawsuit and has asked for my identity details throough court order … I see there are around 4000 other who received same letter … Since getting this letter me and my wife are very disturbed as we know we didnt do it .. but we want this thing to go away ASAP due to personal reasons … dont know about what course of action to take ?? wont lawyering up be expensive than settling out of court ??
I just recieved a call from a Mike Thornton out of CA today! My case was out of Miami Patrick COllins v.John Does 1-915. At first I was scared but as I have done more and more research on this I am less scared and more annoyed by this whole thing! I also know that no one in my house downloaded any porn. I think its ridiculous that any courts would even allow any of these cases to go to court!