YNOT – A Louisville, Ky., woman has filed a federal lawsuit claiming pornographers who sue anonymous alleged copyright infringers are attempting to “shake down” innocent internet users, thereby engaging in activities outlawed by the Racketeer Influenced and Corrupt Organizations, or RICO, Act.

Jennifer Barker, 44, seeks class-action status for her suit, which names four California adult studios: Third Degree Films, Malibu Media, K-Beech and Patrick Collins Inc. Raw Films, based in London, also is a respondent. According to documents filed in the case, the studios are using the U.S. court system to give a thin veneer of legality to what is actually an extortion scheme of epic proportions. She claims the studios have no intention of pursuing legal sanctions against alleged file-traders when they subpoena end-user records from internet service providers. Instead, the studios and their attorneys use the personal information, often obtained based on flawed data, to threaten innocent people with public exposure of non-existent porn-consuming habits if the end-users refuse to pay so-called settlement fees.

Barker claims the adult industry has embarked upon a new business model: Instead of producing and selling sexually explicit content, studios now make their money by filing massive lawsuits based on dodgy data and then strong-arming terrified end-uses into paying hush money. She said she knows how the business model works because she and thousands of others like her have been targeted, and all of them are innocent. She has refused to pay, but others have forked over chunks of change to prevent their personal and professional reputations being tainted by association with smut.

According to the complaint Barker filed with the court:

[QUOTE]These entities, various pornography purveyors, have filed suit in numerous venues seeking to extort money from individuals they claim have downloaded pornography from the internet. The pornography purveyors utilize a technique known as trolling, whereby individuals hired by the various pornography purveyors search for internet protocol (IP) addresses associated with the use of file-sharing software such as BitTorrent. Once the IP addresses have been harvested, the various pornography purveyors file suit naming defendants as John Doe. They then seek to have mass subpoenas issued for the internet providers associated with the harvested IP addresses in order to obtain the name and address of the owner of the IP address on the date it was harvested. Recently, the pornography purveyors have begun using the court system of the state of Florida to file true bill of discovery lawsuits in which they seek only to extract the names and addresses of individuals associated with the various IP addresses.

Once they obtain contact information, the pornography purveyors begin to shake down these individuals by telephone. The tactics of the pornography purveyors clearly indicate they are not convinced that the individuals they accuse of downloading pornography from the internet have actually done so. This is true because they often shake the individuals down for $1,000-$5,000. The pornography purveyors know this amount of money is less than the cost of defense would be if suit were filed. They also know that individuals such as the plaintiff in this matter are embarrassed to have their names associated with pornography, and therefore are susceptible to being shaken down. In fact, if the individuals could be proven to have downloaded the pornography unlawfully from the internet, the pornography purveyors could collect civil statutory damages of $150,000 for a willful infringement such as they allege, yet they settle for $1,000-$5,000.

In effect, the pornography purveyors have developed a new business model using the court system to extort money from individuals who are merely identified by IP address and with no proof whatsoever that they downloaded copyrighted materials from the internet. By extorting settlements of $1,000-$5,000 the pornography purveyors have developed a model whereby they can unlawfully gain more money than they can by selling access to their pornographic videos.
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Some end-users, like Barker, have received phone calls from porn company representatives who demanded thousands of dollars to compensate their clients for multiple willful incidents of content theft. The representatives allegedly always imply a threat of public humiliation and expensive court battles. But according to Barker, the representatives don’t provide proof of copyright infringement outside a loose association of the target’s IP address with a file-sharing network — and even the association can’t be proved, she said.

Barker claims she has never used file-sharing software or downloaded porn. Nor have most of the more than 200,000 people she claims to represent, all of whom felt pressured to settle with porn studios rather than fight back.

Particularly galling to Barker, according to the complaint, is that the pornographers’ lawsuits seek only subpoena power, not any specified compensation or other outright sanctions.

Barker also is angry and offended that studio representatives don’t accept “no” for an answer to their demands for payment. Instead of following through on their threats to try the allegations in court, the studios’ representatives engage in a dedicated program of harassment, often calling their targets repeatedly at both home and work, she noted in the complaint.

“The pornography industry has begun a campaign to shake down users of file sharing technology such as BitTorrent as well as individuals who have never used any file sharing technology,” the complaint states. “Often these targets of the pornography industry have had their IP address ‘spoofed,’ a process whereby an IP address is forged and made to appear to be an IP address other than the actual IP address of the person using the internet. Others have been the victims of a compromised home network that has been used by others unbeknownst to the owner of the network. Furthermore, even if the IP address has been correctly identified, the mere fact of ownership of the IP address does not in any way indicate that the owner participated in an unlawful download of copyrighted material.”

Barker’s case was filed one week after a federal judge in California called massive “John Doe” copyright lawsuits an extortion scheme.

“The federal courts are not cogs in a plaintiff’s copyright-enforcement business model,” Judge Otis D. Wright wrote when he severed all but one unknown defendant from the case [i]Malibu Media v. John Does 1-10[i]. “The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial. By requiring Malibu to file separate lawsuits for each of the Doe defendants, Malibu will have to expend additional resources to obtain a nuisance-value settlement — making this type of litigation less profitable. If Malibu desires to vindicate its copyright rights, it must do it the old-fashioned way and earn it.”