Movie downloads: A shakedown or a theft?
By L.M. Sixel
December 30, 2015
· When Matthew McConaughey won the Academy Award for best actor for the "Dallas Buyers Club," interest in the small-budget film skyrocketed. But many moviegoers didn't buy a ticket. Instead, they downloaded a copy for free.
"The Cobbler" starring Adam Sandler and "Good Kill" starring Ethan Hawke also racked up downloads. Now the filmmakers have filed lawsuits against the unauthorized downloads, saying they amount to theft of intellectual property.
They and producers of other movies have filed dozens of copyright infringement lawsuits in Houston federal court, seeking damages from plaintiffs identified only as "John Doe" based on Internet Protocol addresses that recorded movie downloads from pirating websites.
Some of the John Does are fighting back, alleging the lawsuits are intended to uncover evidence the plaintiffs don't have and force defendants into settlements. Judges in Houston and elsewhere have disagreed on whether to let the suits go forward.
Keith A. Vogt, an Illinois-based lawyer who filed the lawsuits on behalf of "Dallas Buyers Club," said the lure of getting something for free coupled with the perceived anonymity of the Internet is an irresistible combination for some people.
"It's a serious, serious problem for Hollywood," he said. On Oscar night alone, "Dallas Buyers Club," the story of an HIV-infected electrician in the mid-1980s who found a way to get medicine for himself and others infected with the virus, saw a surge of 200,000 illegal downloads.
But some defendants see the lawsuits as a giant fishing expedition based on shaky evidence. "It's all about intimidation," said Houston lawyer Thomas Ross, of the Corso Law Group, who is representing "John Doe No. 20" in the case filed by the maker of "The Cobbler," a movie about a magical shoemaker.
The plaintiffs are trying to find someone associated with each IP address and then negotiate a settlement, said Ross. A lawsuit against his client was dropped after Ross challenged a subpoena for Internet records.
Most of the time it's impossible to prove who might have obtained access to the unauthorized movie sites, he said. It could be a neighbor who found a connection through an unsecured WiFi account or from a cafe that offers free Internet access.
Movie makers are following in the footsteps of music producers that invoked copyright laws in suits against sites offering free music and the consumers who downloaded the tunes.
Since then, legislation has shifted more responsibility to consumers by shielding liability of the Internet portals that host the pirated movies, music and other media. Most of the web pirating sites are outside the United States anyway, beyond the reach of U.S. law.
"People think if it's on the Internet, it's in the public domain," said Amanda Greenspon, a lawyer who specializes in trademarks and copyrights with Munck Wilson Mandala. But that's not true because movies, like music, are covered by copyright laws.
Some movie downloaders assume that their saving $10 on a movie ticket doesn't affect big production companies, Greenspon said, but it's theft.
And Vogt said makers of the "Dallas Buyers Club" took a substantial investment risk by telling an important story that might not do well at the box office. The cast and crew agreed to take a cut in their usual pay rates, he added.
It affects not only the cast and producers, he said, but the hair and makeup staff, the costume designers and sound engineers. They all get a share of the residuals – money that moviemakers earn on subsequent releases of their films.
Year-to-date through Tuesday, 70 copyright lawsuits were filed in the Southern District of Texas, according to an analysis by Androvett Legal Media. Last year, there were 38 such suits. This year, 40 of the suits alone were filed by Vogt for illegal downloads.
According to Androvett, the Houston district is the only one in Texas with such a spike, though there a handful of districts nationwide with similar patterns.
Vogt said he's been focusing his efforts on Houston because he has good local counsel.
Beginning in early 2014, the "Dallas Buyers Club" filed 20 lawsuits. Some of the individual lawsuits included dozens of "John Does" whom plaintiffs alleged downloaded the movie without paying for it.
There are ways to download the film legitimately. For example, it is available on iTunes for $7.99.
In its quest to obtain the identity of those downloading its movie for free, "Dallas Buyers Club" requested court orders to force Internet Service Providers to disclose the information.
The cases were farmed out to several federal judges in Houston and some are permitting a search for Internet addresses. Several "John Does" have settled, according to dismissal notices filed by "Dallas Buyers Club."
Vogt wouldn't say how much he is seeking in settlements, but said he offers to work with the defendants in assessing and collecting payment.
Sometimes children download movies without their parents' permission, he said. Other times, internet addresses are traced to companies because employees are watching the movies while they're at work.
One of the "John Does" named in a Vogt lawsuit is Jim Denison of Magnolia, who represented himself.
The Houston Chronicle could not reach him, for comment, but Denison argued in court filings that "Dallas Buyers Club" failed to take reasonable steps to stop the downloading of unauthorized copies because it did not demand that Internet Service Providers or John Does remove the movie from their servers or computers. Nor did the movie identify actual infringers but relied instead on "the most likely infringer" based on whose name is on the Internet account, he argued.
"Dallas Buyers Club" has "simply collected public IP addresses, identified who paid for the Internet service (ISP subscriber), and then sued them in an effort to obtain a settlement for thousands of dollars," Denison said in his response to the lawsuit.
In April, U.S. District Judge Melinda Harmon dismissed Denison's case along with several others.
Some of the other cases, however, ran into more immediate obstacles. U.S. District Judge Lynn Hughes quickly shut down the inquiry from the "Dallas Buyers Club" last year, 10 days after receiving the initial complaint.
Hughes criticized the effort for relying "on the trite fictions of John Does" when asked to identify the people it has sued. Instead of providing some context as to who they might be, the movie "listed the Internet addresses for each person in block text – impenetrable by anyone save for a fourteen-year-old with designs to use them," according to Hughes' final opinion issued last year.
And if "Dallas Buyers Club" wants to file more lawsuits, Hughes directed they be assigned to him.
Hughes also signed an order in November dismissing all 10 John Doe cases filed by the maker of "Good Kill," the 2014 drama of an Air Force drone pilot who ponders the ethics of dropping bombs on war zones overseas from his comfortable post in the United States.
Some courts view the efforts to find Internet users through John Doe lawsuits as extortion, especially when viewers have downloaded pornographic movies that would be embarrassing if word got out, said Louis Bonham, an intellectual property lawyer for Osha Liang.
But other courts allow searches of Internet Protocol addresses, said Bonham, who is a frequent guest lecturer on copyright issues at the University of Texas at Austin for the architecture, business and fine arts schools.
"It's the luck of the draw," he said, referring to the chance of a lawsuit's success resting with the judge who happens to get it.
Other cases are going forward with federal judges giving the makers of the "The Cobbler" and "Good Kill" the right to obtain Internet addresses.
In August, U.S. District Judge Alfred H. Bennett consolidated 26 separate lawsuits -involving 532 separate John Does – into one. The case was brought by Cobbler Nevada, owner of "The Cobbler" movie, which tells the tale of a shoemaker, played by Sandler, who finds a magical sewing machine that allows him to step into the lives of his customers.
Ross, who represents one of the John Does in that case, said he never got a financial offer from Vogt to settle the dispute. But that didn't really surprise him.
People get nervous when they're threatened with copyright infringement and many agree to settle even though the plaintiff may have no more evidence than an account number linked to a person or company that is paying for the Internet service, said Ross.
"What they're counting on is that it's cheaper to make it go away than hire a lawyer and fight it."