A New Flava of Bittorrent Copyright Lawsuit

Saper Law regularly handles copyright infringement cases involving businesses, software developers, artists, photographers, and production studios. Often times, digital distribution of the copyrighted works via social media, blogs, and most recently, via the Bittorenet network, is at issue.

For example, there has been an explosion of copyright infringement suits by adult entertainment studios against individuals accused of using Bittorrent or other file sharing technology to pirate pornographic films. In the archetypal Bittorrent piracy lawsuit, the plaintiff porn studio harvests the IP addresses of dozens or even hundreds of torrent seeders and files a mass-defendant complaint against a multitude of anonymous “John Does.” The plaintiff then leverages the lawsuit to subpoena Internet Service Providers for the identity of the subscribers assigned the IP addresses.

However, a new wave of lawsuits from the gay pornography studio Flava Works (proprietor of such adult entertainment websites as Cocodorm.com, Thugboy.com, and Papicock.com) fits a different mold. Rather than pursue a torrent swarm of anonymous Does, Flava Works has zeroed in on its own former subscribers, whom it accuses of distributing its videos on file-sharing websites such as gay-torrents.net. The basis for this accusation is apparently a mysterious piece of “proprietary software” that Flava claims to use to insert a “unique encryption code” into each video file that its users download.

Attempting to track digital content using some sort of unique marker—a technique sometimes referred to as “digital watermarking”—is a relatively new tool in copyright holders’ enforcement arsenals. The technology raises serious issues. Could watermarking software in theory provide a way to trace digital files back to their source? Perhaps, but allowing copyright infringement lawsuits to move forward based on evidence generated by a secret, proprietary software developed and controlled entirely by the plaintiff is troubling to say the least. The potential for abuse is boundless.

Even if rightsholders can demonstrate the reliability of their watermarking software, courts must consider carefully how much weight to give to this very indirect form of proof. The fact that a pirated video bears a particular subscriber’s code is paltry evidence that the subscriber is himself the pirate. As anyone knows who has ever had their Facebook account hacked, the six-digit passwords that protect our website subscriptions are far from secure. Furthermore, even if a pirated file could be legitimately tracked back to the subscriber, the chain of custody is full of holes. The video could subsequently have been stolen. Or it could have been distributed without the subscriber’s knowledge or authorization by someone else with access to his computer. Or it could even have been legally sold or given away, just like a used book or CD, under copyright law’s First Sale Doctrine. The connection between the alleged act of copyright infringement and the subscriber whose code is stamped on the infringed file is loose at best.

Saper Law is currently representing several former Flava Works subscribers accused by the studio of copyright infringement, all on the basis of “codes” that were allegedly found embedded in pirated copies of Flava videos. These individuals all vigorously maintain their innocence.  If you’ve been accused of distributing copyrighted videos that you downloaded from Flava Works or from some other website, contact Saper Law Offices to explore your options: 312.527.4100.

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