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Racketeering suit filed over smut-piracy charges

Woman fights back against grumble-flicker's 'extortion'

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A Kentucky woman has started a class action suit against five pornography vendors after harassment over claims that she was downloading their content over BitTorrent.

The suit, filed on behalf of Ms. Jennifer Barker, states that she started getting phone calls claiming that she had been named in a case regarding piracy of copyrighted content from Malibu Media, makers of Tori The Endless Orgasm and Tiffany Teenagers In Love.

The caller offered to settle the case for a few thousand dollars, but if she refused this offer, she was warned, she could be taken to court and sued for $150,000, and would be publicly named for downloading the content.

Barker informed the representative that she had never downloaded pornography from the internet and didn't even know what BitTorrent was, but the calls continued, including to her work voicemail which could be accessed by her bosses. Her lawyer, Ken Henry, told The Register that he'd found many similar cases after researching the issue.

"They have no intention of going to prosecution," Henry says. "In this case they used an arcane form of lawsuit in Florida known as a Bill of Discovery, which actually predates civil law on the subject – it's a discovery lawsuit to seek only information."

He pointed out that Malibu Media had been criticized by a federal judge in California last month for just such a case. In that ruling, Judge Otis Wright slammed the company for essentially running a racket to extort money from people over fear of being named in an embarrassing lawsuit.

"The federal courts are not cogs in a plaintiff's copyright-enforcement business model," Wright ruled. "The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial."

Malibu Media got Barker's details from a British firm called Intellectual Property Protection Ltd, which scanned IP addresses downloading illegal content. After ISPs had identified the users, the legal process of contacting those identified and extracting damages began. But Henry argues that IP spoofing and the possibility of downloaders using hijacked networks makes such data highly error-prone, and the courts agree.

On behalf of his client he's now filed charges under the Racketeer Influenced and Corrupt Organizations Act (RICO), which was originally introduced to combat organized crime but allows for civil cases. Action has also been taken over defamation of the client's character, causing intentional emotional distress, and misrepresenting the nature of the legal action.

RICO's a tough one to prove in court in a case like this, but the case is not without precedent. The RIAA was sued using the RICO statutes by disabled single mother Tanya Andersen after she was accused of file sharing. The industry body backed down – eventually paying over $100,000 to cover her legal fees.

The class action status of the lawsuit means that anyone who has been affected by the issue can join the legal case, and under the RICO statutes they are entitled to triple damages. That said, Henry suggested that the case may kick off a larger debate into whether pornography is actually copyrightable.

"I think there's a real question that this pornography they are saying was downloaded is even copyrightable," he said. "According to the constitution, copyright is to protect those works that benefit sciences and the useful arts, and there's nothing useful about pornography."

This may be true, but history suggests that many people do find it handy. ®

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