'Hurt Locker' Prods to Launch Legal Barrage Against Downloaders
The producers of "The Hurt Locker" apparently see more of an upside than a downside to suing thousands of individuals for illegally downloading the Oscar-winning film. Although that tactic bought some large PR headaches for the music industry, the situation is somewhat different in this case. The producers are likely more interested in collecting damages than in using lawsuits for deterrence purposes.
05/17/10 12:30 PM PT
The producers of "The Hurt Locker" have reportedly signed up with the U.S. Copyright Group in order to sue thousands -- perhaps as many as tens of thousands -- of individuals who illegally downloaded copies of the Oscar-winning movie from the Internet.
The U.S. Copyright Group was formed by intellectual property lawyers with the goal of stopping movie copyright infringement and winning damages from illegal downloaders, according to its website. The firm did not reply to a query from the E-Commerce Times in time for publication.
"The Hurt Locker" is reportedly not the first film that the U.S. Copyright Group has filed suit over. The company's attorneys have also apparently targeted suspected illegal downloaders of some 10 other films including "Far Cry," "Call of the Wild 3D" and "Uncross the Stars."
"The Hurt Locker," though, is the most visible of the group, thanks to its Oscar win -- and its high profile is prompting debate as to whether the movie industry is preparing to go down the same path that its counterparts in the music industry did some 10 years ago.
"If that is the plan, I don't know what people are thinking. Those suits didn't accomplish anything at all except to make the RIAA's customers hate them," said Doug Panzer, an attorney with Caesar, Rivise, Bernstein, Cohen & Pokotilow.
Lessons Learned From the RIAA
Several years ago, the Recording Industry Association of America began suing tens of thousands of individuals for illegally downloading music from peer-to-peer music and digital content-sharing sites.
Few of these cases made it into a courtroom; most individuals contacted by the RIAA settled their suits for a couple of thousand dollars.
However, the outcry over the RIAA's tactics was huge. The perception was that many people merely settled to avoid the expense of a trial. There were accounts of the RIAA suing deceased people, for example, and making other errors -- lending credence to the theory that innocent people were caught up in the RIAA's legal net. The people sued by the RIAA included single mothers, senior citizens and others considered sympathetic, which added to the public relations problem.
The RIAA dropped that approach more than a year ago, shifting its focus to working with ISPs to target illegal downloaders.
While the parallels between the RIAA's tactics and the ones apparently being used by "The Hurt Locker" producers are obvious, the actions are not exactly the same.
For starters, the RIAA's film-industry counterpart, the MPAA, is not involved in the "Hurt Locker" suit, spokesperson Howard Gantman told the E-Commerce Times.
Typically, when the movie industry has gone after copyright infringement, it has done so much further upstream, Aaron Moss, head of Greenberg Glusker's litigation department, told the E-Commerce Times. It has either targeted wholesalers for illegally distributing copies of new films, or it has gone after equipment manufacturers or service providers that made it easy for consumers to illegally copy DVDs.
"For the most part, the movie industry never jumped on the RIAA's bandwagon, at least in terms of suing individuals," said Moss.
Money, Money, Money
There is another difference between these cases and the RIAA's push: The former appear to be about the actual damages, while the RIAA's end goal was always deterrence, Randy M. Friedberg, counsel with White and Williams, told the E-Commerce Times.
Even though it won an Oscar, "The Hurt Locker" did not make much money, he noted -- but it was said to have been illegally downloaded by millions of people both before and after its Oscar win.
"It is easy to understand why the producers might conclude they were financially hurt by the illegal activity and want compensation for it," remarked Friedberg.
Even if the movie producers' motives differ from the RIAA's, they will be using many of the same legal tactics that the RIAA did -- tactics that were, in fact, originally developed by the music industry.
These cases usually run the same way, Moss explained. To identify the culprits, the producers must subpoena the relevant ISPs to find out the names behind the IP addresses that allegedly downloaded the content. The ISPs can either hand them over or resist the subpoena -- either because they have concerns about their customers' privacy or because complying with thousands of such requests could be a resource drain.
ISPs that decide to comply would have to noticy their customers, giving them a chance to file motions to quash the action. They would have to show the subpoena was improper, Moss explained -- which might be difficult to do.
Once names were handed over, the attorneys would contact the individuals with an offer of settlement -- a procedure that the U.S. Copyright Group is reportedly following on behalf of the other film producers it represents.
Anyone who might decide to fight it out in court would have only a few viable defenses to make, Panzer said, starting with the claim that somebody else downloaded the content, perhaps through an unsecured WiFi network. "It is taking a chance, though, going to court, to see if you are believed," he said.
It is also worth noting that one of the few people who actually fought the RIAA in court, Jammie Thomas-Rasset, was twice found liable for copyright infringement.