M. Alex Johnson – Journalist at Large

An analog journalist in a digital world

Reporting: Porn piracy wars get personal

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Cross-posted from msnbc.com’s Technolog blog, where it originally appeared. To read it in context, with all information boxes and art, click here.


Ron Jeremy is one of more than a dozen adult video stars who talked about the damage piracy can cause in public service announcements published last year by the Free Speech Coalition, the industry’s trade association.

It’s not fun, but all things considered, John Steele is OK with being a villain.

In recent months, Steele’s Chicago law firm has filed almost 100 federal lawsuits seeking to identify thousands of “John Does” who downloaded pornographic videos in violation of their producers’ copyright. Federal court records indicate that none of Steele’s cases — in fact, no case of this type ever — has ended with a verdict at trial.

Sometimes, the cases run into roadblocks from skeptical judges over jurisdiction or whether the defendants have been appropriately identified. Others end in settlements for a few thousand dollars from defendants who are relieved that they get to remain anonymous.

Internet privacy advocates and technology writers call Steele a “copyright troll” and accuse his firm of scouring the Internet to track down computers that download pornographic videos, then forcing Internet service providers to identify the computer owners so it can shame those people into writing settlement checks.

The incentive to settle is to keep from being named forever in court records as a porno fiend, which “seems to me like it’s a good way to make an easy buck,” said Julie Samuels, a staff attorney for the Electronic Frontier Foundation, nonprofit advocate for what it calls “freedoms in the networked world.”

“These plaintiffs are out to get a quick settlement,” she said, because they know defendants — even those who have been wrongly identified — are eager to remain anonymous.

If you look at it as a matter of law, a lot of that is right, said Steele, who’s fine with being called names as long as it doesn’t cross the line into accusations of malfeasance.

Yes, Steele’s firm goes looking for pornographic videos being accessed without permission — the firm developed its own tracking software “to make sure it’s done right,” he said.

Yes, the goal is to bring in money for pornographers — a letter from Steele’s firm explicitly urges defendants to seize the “opportunity to avoid litigation by working out a settlement with us.” One of the letters, a copy of which Steele verified, suggests writing a $2,900 check to the firm at its Chicago address.

• Read the Steele Hansmeier settlement letter (.PDF)

And yes, one of the goals is to “scare people,” he said — not primarily into writing checks, but to stop them from “stealing our clients’ content.”

That’s not a bad thing, Steele said, because piracy today is so easy that “the industry’s really on its knees right now.”

(The economics of the pornography business are notoriously hard to nail down, but the industry commonly claims that illegal downloads have wiped out as much as 90 percent of producers’ income since the advent of videocassettes made porn easy to watch in the privacy of the home.)

Lots of people may think his firm’s methods are unfair, but adult entertainment companies are legal businesses with valid claims, and “we believe it’s completely ethical and important to recover more money than the cost of the litigation,” Steele said.

And as for his critics, he accepted that “you can’t control what people say.”

“If we were doing anything unethical, after 95 cases I can assure you I wouldn’t have a law license,” he said.

• Read a representative recent suit (.PDF)

Studios have strong piracy case
Steele’s opponents agree with him when he says that most of the anonymous defendants probably did break the law and that adult entertainment producers have a right to protect their interests in court.

Even as he criticized the methods of lawyers like Steele, Adam E. Urbanczyk, an attorney with Saper Law of Chicago — which defends John Does sued by adult studios — stressed that “it’s almost incomprehensible the amount of material that’s getting ripped off.”

And Samuels, of the Electronic Frontier Foundation, said it’s “absolutely not the position of EFF that the industry should not be able to sue.”

The distaste is with how the suits are filed. And this is where things get pretty technical.

The shorthand description of what plaintiffs’ firms like Steele Hansmeier do is scour P2P networks to identify IP addresses that are downloading copyrighted material.

In non-tech, that translates to looking for videos that are being distributed across decentralized peer-to-peer (hence, P2P) file-sharing networks called “torrent sites.” Then, using geotracking technology (like the GPS in your car or on your smartphone), investigators harvest the numeric Internet protocol addresses of the computers that are retrieving and sharing them.

That requires sophisticated programming, because the computers linked into the torrent “swarm” go on and offline from second to second — and when they’re plugged in, their IP addresses can also change second by second.

Similar cases have sought the addresses of computers that retrieve videos from upload videos to so-called tube sites, which are underground YouTube-like operations that stream entire X-rated videos without permission.

In both instances, the lawsuits are meant to attach real people to the IP addresses. A dozen to a couple of hundred of them are then lumped together in a single lawsuit; this month alone, Steele Hansmeier has filed at least seven such suits seeking the identities of almost 700 John Does in California and Illinois, federal dockets show.

Urbanczyk likened that strategy to “throwing your lure out there” to see what you might catch.

“I wouldn’t say bringing these cases is a scam because the claims are absolutely valid,” Urbanczyk said. But “the whole situation reeks” because there are better remedies for copyright infringement, he said.

Targeting the pirates, not their customers
When mainstream music and movie studios pursued copyright suits against individual users a few years ago, the public backlash was severe. Only a handful of such cases are still being pursued, most notably involving downloads of the Academy Award-winning movie “The Hurt Locker.”

But pornography is different, because “we’re an industry that people may think is morally questionable, that we may deserve it,” said Dominic Ford, a gay adult video performer who operates Porn Guardian, a company that tracks copyrighted material and helps producers pursue video pirates.

Some porn producers prefer Ford’s approach: going after the pirates themselves, something other producers and intellectual property experts say is extremely difficult.

Services like Porn Guardian, run by adult video performer Dominic Ford, try to attack piracy fro the supply end — the pirates.

Many use Ford’s Porn Guardian service, a version of which he offers free to smaller producers. The service helps producers safeguard their material by digitally watermarking it on the front end, gathering evidence of illegal downloading in real time and packaging that evidence for attorneys to file takedown notices against download sites under the Digital Millennium Copyright Act of 1996.

A driving force behind pirate-focused campaigns is a studio called Pink Visual of Van Nuys, Calif., whose president, Allison Vivas, has convened two industry gatherings bringing together producers, performers, distributors and intellectual property experts. Their goal is to develop a “collaborative anti-piracy stratregy” across the industry, said Jessica Pena, the company’s corporate counsel.

“This isn’t just about lawsuits,” said Quentin Boyer, a spokesman for the company.

Boyer said Pink Visual was also putting the final touches on a new way to deliver copyrighted video online called PV Locker, which is designed to prevent piracy at the source. Now in beta, it allows subscribers to pay for whatever they want on demand, but it’s available only inside the site. If it works the way Pink Visual intends, pirates can’t download the video in the first place.

That’s the real key to stopping losses, said Ford, who — using an analogy commonly repeated in interviews with executives of several companies — said cleaning up files on the Internet after they’ve already been downloaded is “just playing Whack-a-Mole.”

“It’s not about the 300 people who were illegally downloading it,” Ford said, especially because “there’s been some bad publicity when lawyers are going after these John Does (who) end up being a 70-year-old grandmother who didn’t know the kids next door were feeding off their Wi-Fi.”

• Bizarre pornography raid underscores Wi-Fi privacy risks

Could ‘false positives’ help teach a lesson?
Steele acknowledges the “false positives” — industry shorthand for otherwise innocent but technologically naive defendants who don’t protect their home networks, leaving them open for anyone to use. Their defense is usually that they had no idea someone else — their teenage son or the college kid next door, for example — was downloading porn over their networks.

Experts disagree whether that’s a valid defense, and anyway, it’s “a huge P.R. problem,” Steele said.

Another P.R. problem is the public perception that lawyers like Steele invade individuals’ privacy by sneaking into their computers for a look around. That’s not true, Steele said — that really “would be an invasion of privacy.”

Instead, Steele Hansmeier’s software joins the torrent swarm and monitors traffic to and from ISPs to users’ Internet routers, he said.

“There are no entrapment issues because … we’re sitting right outside,” much like investigators who legally go through trash bins on the sidewalk, he said. If someone else is piggybacking on your network, the solution is simple: Password-protect it. The hope, he said, is that eventually “people are no longer going to leave their wireless networks open.”

Until that happens, Steele said, he really has no choice but to go after home users because pursuing pirates is unlikely to be effective in the long run.

“Why do we sue the end user? Because there’s no one else in the piracy chain,” he said. The nature of torrent sites — most of which are hosted outside the United States anyway — means “there’s absolutely no company we can go after.”

“We can’t go after middlemen because there aren’t any middlemen,” he said.

‘Piracy starts at a very known place’
Pink Visual, with its “content protection retreats,” and Dominic Ford, with his nearly 300 Porn Guardian clients, suggest that Steele may be skipping a step: working with them to choke the torrent sites’ supply.

“Piracy starts at a very known place: my website,” Ford said. “Someone is starting at our website and downloading that content. Those hundreds of copies are all exact duplicates of one file that was downloaded from one site.”

The idea is that by targeting that initial downloader, you should be able to intercept the video before it even makes it to a torrent site. Ford’s company says 98 percent of the takedown notices it generates are successful.

Often, those downloaders aren’t really pirates, he said; they’re just people who’ve been confused by the dominant culture of the Web.

Such people aren’t criminals, he said; they just don’t make the connection between product and producer.

• Technolog: 70 percent find piracy socially acceptable, says poll

“There’s a common perception in America and perhaps the world that porn companies are all huge and unbelievably wealthy, that because we make movies and the mainstream (movie industry) makes movies, we’re as big as they are,” he said.

Most porn studios are “mom-and-pop operations like mine, or pop-and-pop, if you will,” he said. “They’re not these juggernaut companies where a little bit of piracy is not going to affect them.”

That’s the core conflict, said Urbanczyk, the Chicago lawyer who represents defendants in John Doe cases.

It may be true that “information wants to be free,” he said. “But entertainment does not want to be free.”

One Response

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  1. Interesting article – thanks for posting.

    youjizz

    December 4, 2011 at 9:55 am


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