Time Warner Cable, one of the nation's largest Internet service providers, has refused to turn over customers accused in a lawsuit by Larry Flynt Publishing of pirating one of the company's porn films, according to Flynt's attorney.
In October, Dallas-based attorney Evan Stone filed three separate lawsuits against more than 4,000 "John Does," alleging the defendants illegally shared the movie "This Ain't Avatar XXX." The copyright suit was filed on behalf of Larry Flynt Publishing (LFP), which oversees Flynt's adult-entertainment empire, including Hustler magazine.
"If you're a pirate in these times, TWC is the ISP to have," Stone told CNET.
The identities of the accused are unknown because Stone only possesses Internet protocol addresses of people alleged to have used peer-to-peer software to pirate films. To identify the defendants, he needs each person's ISP to match IP addresses to names. Stone said TWC agreed to only turn over 10 names per month, an amount that he said is totally unsatisfactory. A TWC spokesman declined to comment.
LFP didn't agree with Stone's assessment. According to Stone, LFP managers didn't want to challenge TWC, which is one of their business partners, and asked him to back off. Instead, he and LFP have agreed to part ways soon.
The past year has seen a handful of law firms from across the country file copyright suits on behalf of independent film studios and makers of adult film. Each complaint has named thousands of defendants but the suits have failed to make much progress. It appears that the courts and some ISPs are either just not set up to handle these kinds of mass suits or unwilling to do so.
Prior to Stone's trouble with TWC, Kenneth Ford, the attorney believed to have filed against the most copyright defendants, saw his litigation campaign derailed by a federal judge in West Virginia. Earlier this year, Ford filed nine copyright complaints against a combined 22,000 unnamed individuals. On December 17, the judge in one of the cases dismissed all but one defendant and told Ford he would have to file a separate lawsuit for each defendant, according to a report in Ars Technica.
While the judge's decision only affects that particular case, if the judges overseeing Ford's other cases see it the same way, it would cost he and his clients $7.7 million in court fees to pursue all the defendants. That amount doesn't include all the other costs associated with pursuing 22,000 separate cases.
Ford had patterned his legal campaign after one launched in March on behalf of several indie film producers by the law firm Dunlap, Grubb & Weaver. Like Stone, Dunlap also couldn't persuade TWC to turn over names quickly. That eventually led Dunlap to drop complaints against thousands of accused film pirates. The firm said it will continue to work the cases but take a slower approach. Critics are skeptical the firm can make money with such an approach.
Stone said the suits he has filed stand a better chance than Dunlap or Ford's. While he saluted their attempts, Stone was critical of their methods. He said there wasn't enough evidence in Ford or Dunlap's filings to sufficiently tie the defendants together. The firms also filed in unfriendly courts, according to Stone.
In the complaints he filed, on behalf of such adult-film studios as Vivid Entertainment and Mick Haig Productions, Stone said he shows that all the defendants helped each other obtain pirated copies of the same movie.
"Plaintiff has evidence that each and every defendant in this case was using the same .torrent reference file to obtain the exact same copy of Plaintiff's film," Stone wrote in documents filed with the court. "They only could have obtained [this] from other defendants in this case or yet unlisted defendants who themselves had already obtained the film ... BitTorrent piracy is pointless without a BitTorrent 'swarm.' This swarm is the group of users that are connected to each other to obtain the data referenced in the .torrent reference file... such as a reference file for a motion picture. For this process to work, each user must have the same .torrent file. It is not enough for a user's .torrent file to merely reference a copy of the same motion picture. It must reference the same specific copy of the motion picture as everyone else in the swarm for that user to participate in the swarm."
Other advantages Stone says he possesses are that all his clients, with the exception of LFP, want him to "go to the mat" on this issue.
"I was born for [these kind of cases]," Stone said. "I put myself through school doing database programming and I earned a film degree before my law degree. I honestly think it's my tech background that has saved me from making the same mistakes [Dunlap and Ford] made. Either way, this trend of BitTorrent litigation is a long way from over."