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Barker had heard nothing about any lawsuit; indeed, she said that she had never downloaded pornography from the 'Net and had no idea what this "BitTorrent" even was. Hansen nevertheless wanted a payment; if none was forthcoming, Barker might well find herself facing up to $150,000 in damages under US copyright law. And her name might be publicly linked with pornography.
Barker refused to pay, so Hansen called back, allegedly leaving multiple voicemails and even calling Barker at work. Barker, fed up, believed she was being extorted. She went out and found a local Kentucky lawyer, Kenneth Henry of Louisville, and together they devised a legal strategy to fight back.
Yesterday, Henry filed a federal lawsuit on Barker's behalf in Louisville, targeting five pornographers who seek to "extort money from individuals they claim have downloaded pornography from the Internet." The suit further seeks class action status on behalf of "individuals throughout the United States who have been subjected to the unlawful extortion attempts of the Defendants herein." Henry estimates that this class exceeds 200,000 people.
To see how this will likely play out, consider the case of Uwe Boll, the German filmmaker behind the film Far Cry. Boll hired the US Copyright Group (really a group of Virginia attorneys) to sue downloaders of his film. One of the eventual targets of this process, Dmitrity Shirokov, in 2010 sued the US Copyright Group and Boll's company for racketeering, fraud, and unjust enrichment over their attempt to get him to pay up. Shirokov, like Barker, has sought class action status for his case.
Eighteen months into the litigation, the two sides are still arguing hard, and nothing like a trial is in sight. (A judge recently allowed several of the fraud charges to remain, but threw out several others). At a status hearing a few months back, the two sides made the same basic arguments we're likely to hear in Barker's case.
A lawyer representing US Copyright Group made clear that the lawyers concede no wrongdoing at all. Indeed, Shirokov never suffered any harm, since he never paid them any money nor had any lawsuit filed against him. He should, said the lawyer, have no standing to sue just because he got a letter he didn't like.
But Jason Sweet, representing Shirokov, contended that his client had been harmed simply by getting such a letter and by seeking legal advice about it. That costs money. Besides, the entire litigation scheme, said Sweet, was designed to go after people while making it hard for them to mount a defense.
But the lawyers and filmmakers behind these cases insist that there's nothing nefarious about what they're doing; even if particular demand letters are incorrect, there's nothing generally improper with sending them. Such letters are staples of the legal profession; what would lawyers do without them? As for not bringing every single "Doe" case they file to trial, they note that it is generally preferable to come to a settlement than to file a lawsuit.
The lawyers have a hard time seeing why receiving letters that demand you pay money or risk a major federal lawsuit should cause such commotion; after all, as Boll's lawyer put it, "A demand of $1,500 is certainly not unreasonable. So the letter itself, compared to demand letters that I get every day, appears to me to be, frankly, benign."
But the real innovation in this entire business model has been the way it threatened to drag so many non-lawyers into federal court, potentially facing astronomical statutory damages. The letters aren't going to lawyers; they aren't going to companies with lawyers; they're going by the tens of thousands to ordinary people, many of whom are baffled and angry by the demands being made. For those people, a choice to pay $1,500 to some voice on the end of a telephone call or to pay $1,500 for legal advice instead isn't "benign" at all.
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