'Copyright trolls' target Minnesotans, accusing them of stealing online porn

Imagine you're accused of illegally downloading a pornographic video and violating the owner's copyright. Whether you actually did or not, you now face a demand to pay several thousand dollars to settle the matter. Or you could pay the legal costs of a court battle and have the allegations made public. That's a quandary thousands of people in Minnesota and across the nation have been facing.

One Minnesotan involved in such a scenario was Nate Abshire, who received a barrage of calls and letters from Prenda Law of Minneapolis late last summer.

Prenda said it had been retained by a firm identified as Hard Drive Productions and was prepared to sue Abshire for allegedly downloading a porn movie without paying for it.

"I don't remember the title offhand," said Abshire, a resident of Minneapolis. "It was from ... Amateur Allure," whose website says it's "where nice girls come to ... ." The video is, shall we say, short on dialogue.

Prenda told Abshire the download had been traced to the Internet Protocol (IP) address for his home Internet connection. The firm warned Abshire that he could face a judgment of $150,000 or more under copyright law if he failed to settle the matter out of court.

Abshire said that "$3,000 was the amount they asked for."

"They started to give me deadlines for when they were going to prosecute the case," he added.

Abshire is hardly alone. One watchdog group, the Electronic Frontier Foundation, estimated that lawyers for porn merchants have filed lawsuits seeking the identities of a quarter million people with Internet addresses to which porn was allegedly illegally downloaded.

Lawyers, it seems, got names and addresses for most of those people and demanded money from many of them. Attorneys for the porn industry boast that they have extracted millions of dollars from people.

Fighting back

Anyone downloading copyrighted porn from third-party sites that offer it for free could be targeted in one of these actions. So could people whose Internet connections are used for illegal downloads, with or without their knowledge.

Many people pay thousands of dollars to settle, regardless of their downloading history, hoping to avoid what could be an embarrassing and expensive lawsuit.

Not Abshire, though.

The bearded, bespectacled Abshire is a stand-up comedian whose routines are R-rated. "It would be really difficult to embarrass me legally," he said. "I'm typically uncomfortably honest in front of lots of strangers."

In any case, he said he did not download the video. Maybe someone else using his unsecured Internet connection did. Abshire said that anyone could have used it to get the video: roommates, neighbors, someone in a car outside his apartment building.

So Abshire hired Scott Flaherty, a lawyer who took the case to federal court seeking a declaration that the facts showed Abshire could not be held liable for violating the copyright on the video.

"We just wanted the court to say, 'You're innocent,'" Flaherty said.

The court didn't have to. Flaherty said the other side dropped the matter, saying it would be too expensive to pursue a lawsuit.

"By and large, when people fight back, as far as I've seen, they're usually successful," he said.

There is a simple reason: Flaherty said that simply associating someone's name with an IP address is not strong enough evidence to prove the person made an illegal download.

Abshire received a guarantee that he would never be sued on the issue.

A money-making model

Attorney Chris Sandberg said that about 50 Minnesotans have sought his advice after being spooked by accusations that they stole video porn.

"The business model being used by the attorneys doing these cases is to get people to send them money without going to court," Sandberg said.

Sandberg added that lawyers do their best to scare people into settlements.

"They will point out that you could be sued for up to $150,000, which is a fairly extraordinary bit of relief available under the Copyright Act," he said. "They will say you will be responsible for all of their attorneys' fees and costs, which is potentially possible. It'll be kind of a parade of horribles sent out in the letter and then an offer to make it all go away -- for the payment of a few thousand dollars."

Many people are baffled by the charges and scared about what can happen to them, Sandberg said.

Some would not even know how to download pirated porn; others ignore the letters and calls, hoping they won't be sued. But Sandberg said many are afraid of what could happen.

"There are folks who are faced with a terrible problem of do they pay some money for something they didn't do," Sandberg said. "Or do they live with the threat that they would be sued and have to spend far much more than that defending themselves."

'Copyright trolls'

Two University of Minnesota law school graduates are among the most reviled "porn copyright trolls," as critics brand them. One of those attorneys, 2006 grad John Steele, said he got the idea to pursue illegal porn downloads when he was in law school.

"Me and my partner were the first ones to ever really do it, about three and a half years ago," Steele said. "Clients hoped going after people would scare people away from stealing their content."

The partner was Paul Hansmeier, class of 2007.

Steele said he has gone after a few thousand people for allegedly downloading pirated porn, and total collections from them are in the seven figures. Most, he said, choose to settle out of court. "The recovery over all the clients I've ever worked with?" he said. "I could say maybe a few million dollars."

Steele said he was not very involved in such cases these days and has directed former clients to another attorney, Paul Duffy. Steele insisted that the cases were legitimate efforts to defend clients' rights to be paid for their property.

"I'm an attorney," he said. "I would say strenuously that we follow the law when we pursue these people."

Judicial smackdown

But a federal judge in California disagreed, saying Steele has been part of a deceptive enterprise and has defrauded the court.

On May 6, U.S. District Court Judge Otis Wright concluded Steele and some associates were the de facto owners of some companies formed for the sole purpose of pursuing copyright infringement cases. The judge said the firms' only assets were the copyrights on some pornographic movies.

The judge said that Steele and associates hired attorneys to prosecute the cases and "ordered their hired lawyers and witnesses to provide disinformation about the cases and the nature of their operation." Wright also castigated Steele and three other attorneys for a "form of moral turpitude unbecoming of an officer of the court."

The judge imposed an $81,000 penalty on Steele and other parties. In closing, Wright said he would relay his concerns to all judges overseeing similar cases, to relevant state bar associations, the IRS and federal prosecutors.

Steele said he is appealing the judge's order.

"It's just simply a statement made by the court as to what it thinks," he said. "We'll have to see if this kind of sanction order is going to hold up under appeal."

Whatever the outcome, Wright's moral outrage doesn't make porn copyright trolling any less lucrative. And California attorney Morgan Pietz, who has defended several clients accused of downloading pornography illegally, said the threats and efforts to squeeze payment out of people will likely continue.

"The incentive exists under the Copyright Act for people to try to make millions of dollars suing for infringement of a work of authorship that was never likely to worth very much if anything at all to begin with," he said. "Therefore, it seems like these lawsuits are not going to go away."

And Pietz said it could be decades before copyright laws are revised.

Neither Comcast nor CenturyLink would say how many Minnesotans they have identified when served with subpoenas seeking the names and addresses of people with certain Internet connection addresses.

"Our consumers' privacy is extremely important to us; however, we also have to comply with the law," said Comcast spokeswoman Mary Beth Schubert. "We don't provide specific details with respect to requests for customer information unless we are compelled to do so with a valid court order."

CenturyLink said it is obligated to respond to valid subpoenas.

"We have, on several occasions, objected to subpoenas issued by copyright owners seeking subscriber information on the basis that those subpoenas were invalid," said spokeswoman Joanna Hjelmeland. "Given the high volume of subpoenas we receive, we do not track specific subpoena numbers and associated geographic data."

Here's some advice for people accused of stealing pornography posted on the Web:

• Never call the plaintiff's attorney yourself.

"Never, ever, ever call the phone number they provide," said attorney Trina Morrison. "If you call they think that's an indication of guilt. Then they'll say, well they called us and that indicates guilt. So we can sue them. Contact an attorney if you can afford one. If can't afford one, there are some pro bono attorneys out there who will take these cases."

• You could wait to see if you're actually sued. Many threats don't turn into lawsuits.

"Some people when they get a letter, they will choose to ignore it because ultimately these copyright troll attorneys don't pursue everyone whom they communicate with," said Mitch Stoltz, a staff attorney at the Electronic Frontier Foundation, an advocacy group focused on technology and the law. "They certainly don't sue everyone they communicate with. If someone actually gets served with lawsuit, though, then it's very important not to ignore it. At that point, it's really important to retain a lawyer and formally respond."

• Even if you just get a threatening letter, talking to an attorney may be a good idea. Many lawyers will offer free consultations about these letters.

"I would certainly give a free initial consultation to someone who faced one of these letters and I think anyone else who does these kind of cases would be happy to have a conversation with someone who's facing one of these," said Scott Flaherty, an intellectual property attorney with Briggs and Morgan. "And most of us have found a way to make it cost-effective for most people accused of this stuff."

In other words, hiring a lawyer to defend you should be less expensive than agreeing to a settlement.

• Many of these cases hinge on the use of BitTorrent by the alleged illegal downloader.

BitTorrent is a file-sharing software technology. It uses a network of computers to store large video and other files and deliver them quickly to people with BitTorrent or similar software installed on their computers.

Judge Otis Wright's order describes the Prenda Law method this way: "Their litigation strategy consisted of monitoring BitTorrent download activity of their copyrighted pornographic movies, recording IP addresses of the computers downloading the movies, filing suit in federal court to subpoena Internet Service Providers ("ISPs") for the identity of the subscribers to these IP addresses, and sending cease-and-desist letters to the subscribers, offering to settle each copyright infringement claim for about $4,000."

• Be aware that you are not necessarily the same as your IP (Internet Protocol) address.

Even if someone accusing you of a wrongful download has documentation that the file was sent to your IP address, that is not likely to be adequate proof that you were responsible for the download. Wright puts it this way in his order: "Plaintiffs cannot conclude whether that person ... is the subscriber of that IP address, or is someone else using that subscriber's Internet access. Without better technology, prosecuting illegal BitTorrent activity requires substantial effort in order to make a case. It is simply not economically viable to properly prosecute the illegal download of a single copyrighted video."

More advice is available from the Electronic Frontier Foundation.

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