Saper Law continues to represent individuals sued by the porn industry

Saper Law continues to represent individuals who are being sued by certain adult film companies for copyright infringement utilizing the BitTorrent protocol. These adult film companies include: Millennium TGA, Hard Drive Productions, Lightspeed Media, Future Blue, West Coast Productions, MCGIP, First Time Videos. Some of the lawyers representing these studios include Evan Stone of Texas and Kenneth Ford of West Virginia. In Chicago, many porn studios retain attorney John Steele.

We wrote an article about these lawsuits (naming hundreds, sometimes thousands of John Does) back in November.

This article seeks to answer some of the most common questions we receive from our clients and gives an update on the status of some of these cases.

Q: I live in New Jersey and my ISP has sent me a subpoena notification regarding a lawsuit filed in Texas by a company based in California. How is this possible? Can I be sued in a state that I do not live in or have ties to?

A: Yes, you can be sued anywhere; however, whether you can sued successfully anywhere is another question. By briefly researching these types of cases, you will find that the vast majority of John Does are named in lawsuits filed in courts which would have no jurisdiction over them. Essentially, the Plaintiff companies, after acquiring their lists of IP addresses, are refraining from determining where those anonymous individuals are located. It is less expensive for the plaintiffs to file one law suit and name lots of John Does, instead of paying the filing fees associated with pursuing every alleged infringer individually, in the appropriate jurisdiction.

Q: What should I do if I have been named as a John Doe in a lawsuit filed in a state in which I do not live?

A: This depends on the stage of your particular anonymity. If you are fortunate enough to have been notified by your ISP that it has received a subpoena, you likely have some time to draft and file a Motion to Quash the subpoena. Such a motion, in these types of cases, is predicated on lack of personal jurisdictional. Succeeding on such a motion eliminates your ISP’s obligation to disclose the information the plaintiff is seeking (your name, address, and telephone number, usually), though the cause of action – copyright infringement – persists. Successfully quashing a subpoena for lack of jurisdiction forces the plaintiff to re-file its lawsuit in an appropriate jurisdiction.

If you were never made aware of the subpoena sent to your ISP, and you have simply received a letter from an attorney’s office demanding money, then your work is slightly more cut out for you. Addressing this situation procedurally will generally require filing a Motion to Dismiss for lack of personal jurisdiction under Fed. R. Civ. Proc. 12(b)(2).

Determining whether a motion to quash or a motion to dismiss is the appropriate route for you is a question you should present to your attorney.

Q: Has anyone successfully challenged these infamous adult film copyright infringement cases?

A: Due in large part to amicus briefs filed by the Electronic Frontier Foundation and Time Warner Cable, thousands of subpoenas seeking to identify anonymous John Does were quashed in several cases filed in West Virginia. CP Productions, Inc. v. Does 1-300, filed in the Northern District of Illinois, was rather famously dismissed (without prejudice) due, in Judge Milton Shadur’s view, to its improper filing. There are other examples of cases which either have been dismissed (again, without prejudice), or where all-but-one subpoena has been quashed. However most of these cases persist. What this means, in simple terms, is that most of these lawsuits are still pending, or can be refiled, and no John Doe to date has been able to get the case permanently dismissed against him.

Q: I thought sharing and viewing porn online is free—does this mean that using BitTorrent and other peer-to-peer networks to view porn constitutes infringement?

A: The short answer is yes. Utilizing BitTorrent to share content probably does constitute copyright infringement—at least according to current law. In general, you must be careful when downloading pornographic materials. Do not download unless the site clearly states that you can share and view those materials for free. Unless it states otherwise, assume that you must pay in order to view and share that material.

Q: Ok, so what are my options?

A: Generally speaking, when faced with a subpoena notification or demand letter, there are three ways to handle the situation. One is to simply ignore it; while seemingly irresponsible, an argument can be made that the plaintiff, being faced with the hundreds (if not thousands) of potential defendants, will simply not have the resources or interests to pursue each John Doe individually, and that the case will ultimately “go away” or be dismissed by virtue of some other party’s efforts. The second is to fight the case, either through postponement vehicles such as Motion to Quash and Motions to Dismiss, or substantively. These are often successful, though not always terminally , i.e. the chance exists you may have to start over in an appropriate jurisdiction. The third, least emotionally-satisfying option is to settle the case. Though many clients find this choice distasteful (“Just because my wireless router was unsecured I have to deal with this @#$%!”), it can prove to be the most economically efficient.

Q: How can Saper Law help me?

A: Saper Law Offices has substantial experience with file-sharing dispute. Indeed, Daliah Saper, is one of only a handful of lawyers in the nation who defended individuals sued by the Recording Industry Association of America ( RIAA ) for music file sharing. In one notable case, Saper Law client, Paul Wilke, was sued by the Recording Industry Association of America for supposedly downloading songs illegally via peer-to-peer networking. Wilke maintained his innocence and by enlisting Saper Law’s services, successfully filed a motion for summary judgment that resulted in the dismissal of the case. Saper Law’s successful representation of Mr. Wilke was covered by several major media outlets.

To discuss the specifics of your case, please call the office: 312.527.4100 or schedule a time to speak with a Saper Law attorney using: www.tungle.me/saperlaw.

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