Utahns among thousands accused of illegal downloads

Published: Saturday, April 30 2011 10:00 p.m. MDT

WEST VALLEY CITY — A week before her daughter's wedding, Ginger Nelson was notified of a lawsuit for an offense she says she knew nothing about.

"I couldn't believe I was getting it," the West Valley City resident said.

The letter from her Internet service provider, Comcast, notified her that her name, home address and phone number were being subpoenaed by West Coast Productions, an adult film production and distribution company, which was accusing her of illegally downloading one of their films.

"This is just something I didn't need," Nelson said. "It's just taken a lot of my time away from this wonderful celebration that we were going to be having."

Nelson is one of nearly 6,000 defendants included in the lawsuit. At least one other Utah resident, Jim Robinson from Parowan, was also included. The common element in their situations is that neither had secure, encrypted wireless Internet connections and both believe someone downloaded content using their Internet services.

"I do not download movies, especially from a porn place," Nelson said. "I hate pornography. I think it's eating our society up inside."

Nelson has until May 9 to appeal the subpoena, but after researching similar cases online, she said she probably won't.

"West Coast Productions gets the information anyway," Nelson said. "Even if you have a lawyer."

Robinson, on the other hand, filed a motion to quash the subpoena. He argued that because he, like Nelson, had an unsecured wireless network allowing multiple people access to his Internet connection, it would be impossible to find the person actually responsible for the download.

Dunlap, Grubb and Weaver, the Washington, D.C.-based law-firm representing West Coast Productions, has filed a retort to the motion and requested that it be dismissed. A decision is pending.

Dunlap, Grub and Weaver didn't respond to multiple phone calls and emails over a period of weeks requesting comment.

An employee of West Coast Productions, who asked not to be named, said illegal downloads are killing DVD sales.

"I don't know how you would put even a dollar on anything like that," she said. "It's not just us; take a look at Blockbuster."

She said West Coast Productions joined other film companies in hiring Dunlap, Grub and Weaver to go after illegal file sharers. West Coast Productions is kept in the dark about the proceedings until the lawsuits are resolved, she said.

"We're kept out of the loop until we get a check," she said.

Dunlap has filed multiple lawsuits in the U.S. District Court for the District of Columbia, each one naming hundreds or thousands of "John Does" who have downloaded the same content using a file sharing technology called BitTorrent.

The firm starts by obtaining people's Internet protocol addresses and subpoena their identification and contact information from their Internet service providers.

Once they have the identities of the accused, they send them a letter threatening a judgment of up to $150,000 per downloaded movie — the maximum penalty allowable and a very unlikely judgment, according to the Electronic Frontier Foundation, a group that champions itself in defending the rights of Internet users. The letter offers a settlement of $1,500 to $2,500.

"That's a carefully calibrated number," said Rebecca Jeschke, media relations director of the foundation. "It's meant to be cheaper than your other options."

Another option is to fly to Washington and hire an attorney, Jeschke said.

"How many people are going to be able to go to D.C., hire a lawyer and the time you go away from work?" Nelson said. "Most people are just going to say, 'OK, I'll pay the $2,000.' It's easy pickings for West Coast Productions."

Nelson's not wilting, however.

"I'll just take a vacation and go down there," Nelson said. "I'd be willing to do that because I just hate being bullied. I just don't believe that the courts would back them up."

In previous rulings, the district court hasn't always backed Dunlap's practices. To file a lawsuit against someone in the District of Columbia, Dunlap has to provide evidence that part of the offenses of the accused happened within the district. Judges have dismissed past Dunlap lawsuits because the alleged offenses of defendants didn't occur within their district. In response, Dunlap started suing people in their own districts, but their profit margins are small and doing so is costly, Jeschke said.

In addition to the travel costs Dunlap assumes by filing lawsuits in other courts, they also risk defendants challenging the complaint when it's filed closer to home, Jeschke said. Furthermore, it becomes easier for defendants to find attorneys licensed to operate in the district of the lawsuit, she added.

If the lawsuit stays in the District of Columbia, the cheapest resolution is probably to settle, said Charles Mudd, a Park City attorney who has represented people accused of illegal peer-to-peer file sharing.

"The settlement approach unfortunately, is probably the one with the most certainty and finality and least risk," Mudd said. "The only downside, of course, is that you're paying money."

Avoiding a lawsuit is as simple as securing wireless networks with a password and not downloading free content, Mudd said.

"If you're not paying for it, don't download it," Mudd said. "If it's too good to be true, it probably is."

Mudd said he respects attorneys from Dunlap but disagrees with their practice of suing hundreds or thousands of people in a single suit. Doing so makes it difficult for a defendant's case to be considered individually, he said.

"The way that they are doing this, it just shows that they are a very greedy company," Nelson said. "It's just really sad to me that they would do this."

Email: sgarn@desnews.com

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