Porn Industry Suing File Sharers – Does this Raise Privacy Issues?

File-sharing has been around for years, allowing the transfer of music, movies, software, and just about anything else that can be digitized, to and from all corners of the Internet, for free. The fact that downloading copyrighted material from any source, without the copyright owner’s permission, is completely illegal seems to be of little concern, as millions of people around the world download and share copyrighted material every day. This has made a lot of content-owners very unhappy.

The nature of the newest player in this dispute, however, raises some serious concerns: the pornography industry has begun to sue file-sharers (also reported here).

In the early days of file-sharing, services like Napster were directly sued by content owners (in that case, the RIAA), and courts ordered them to shut down. However, this became completely ineffective when new file-sharing protocols, like Bittorrent, arrived on the scene. Bittorrent, and similar services, are completely decentralized. Unlike Napster, which used central servers that could simply be turned off, Bittorrent works by directly linking computers that are connected to the Internet.

With no centralized entity to shut down or (more importantly) sue, content owners have had to adopt a new legal strategy when it comes to protecting their rights: suing individual file-sharers directly. They do this by obtaining the IP addresses of file-sharers (quite easy, with just a little bit of technical knowledge), and file lawsuits naming the IP addresses as “Doe” (currently anonymous) defendants. Once the suit is filed, they subpoena the internet service providers for the identities of the users behind the ISPs named in the lawsuit. Once this happens, they send a letter to each user, offering to “settle” for a fairly hefty sum – typically $1,000 to $2,000. The letter warns that if they decline, they will be sued for a much, much larger sum.

Almost every person who’s gotten one of these letters over the last several years decided to pony up. For the few people who decide to fight these lawsuits, things tend not to go very well.

While I’m all for content owners protecting their intellectual property rights, I see an inherent ethical problem in this litigation strategy: when plaintiffs in these cases cast such a wide net, it’s almost certain that at least a few innocent people will get caught in the dragnet. And when these individuals receive harshly-worded letters demanding a “settlement,” they might decide that they have no legal recourse (the cost of defending a lawsuit, even if successful, is far greater than the amount of money demanded), and just pay up. This amounts to little more than a shakedown.

However, when the plaintiff is in the porn industry, and suing over the piracy of a copyrighted adult film, this adds another layer of protection. I should note that, as far as copyright law is concerned, there’s nothing inherent in pornography that distinguishes it from any other work: like any other creative work, it’s perfectly copyrightable, regardless of its artistic merit or social worth (if it even has any whatsoever).

But in addition to the threat of a costly lawsuit, and six-figure judgment, these “settlement offers” contain an implicit threat that may be far worse than any financial damage: the threat that a person’s porn-viewing habits will be aired in court, for the world to see.

The Supreme Court has long held that, implicit in the freedoms secured in the Bill of Rights, is a constitutional right to privacy, many state constitutions explicitly recognize rights to privacy, and virtually every state allows a private party to sue another private party for invasion of privacy, and a reasonable person would consider airing facts like this to the public to be a major invasion of privacy.

Furthermore, everyone has a right to defend themselves in a civil lawsuit. In cases like this, however, the vast majority choose to settle, simply because the cost of defending a lawsuit (let alone defending a lawsuit, and then losing) is usually prohibitive. It’s certainly a defendant’s right to accept a settlement offer in lieu of a costly trial.

Basically, these defendants are being threatened with the violation of one right (privacy) if they choose to exercise another right (defending themselves in a lawsuit).

Is there a solution to this problem? As I said, it’s not as if copyright owners don’t have a right to pursue legal remedies for infringement of their intellectual property rights, and this tactic (mass lawsuits against file-sharers demanding quick settlements) has proven to be quite lucrative, even if it doesn’t do much to deter file-sharing. Perhaps that’s the problem.

A civil lawsuit, whether it’s for copyright infringement or a car accident, is supposed to be about rectifying a quantifiable wrong with money paid by the wrongdoer. In the case of copyright infringement, the harm done to the copyright holder could presumably be measured in sales lost as a result of the infringement (assuming that every pirated copy of a work that’s downloaded would have otherwise been obtained by lawful means). However, Copyright law in the U.S. allows copyright holders to seek statutory damages of tens of thousands of dollars per infringement, regardless of the actual harm.

This system gives copyright holders a lot of leverage to demand comparatively-modest “settlements” of $1,500 or so. When you add the threat of public embarrassment, you’ve got even more leverage. Perhaps the playing field would be much more even, and shakedowns like this far less attractive, if Congress would slash the amount of statutory damages available in copyright lawsuits, thereby tying damage awards far more closely to the actual harm suffered by plaintiffs.