Copyright Attorneys Disagree About Validity of Erotica Website’s lawsuits
One couple in Southern California left behind a real-estate career and turned to erotic filmmaking, mostly for the money. Now, their website, X-art.com charges a $40 per month subscription for unlimited access to short films, and not only are Mr. and Mrs. Fields rolling in the dough (living in a $16 million coastal mansion in Malibu), they are also responsible for more copyright lawsuits filed in the U.S. than anyone else, according to this article in the New Yorker online. About 30 percent of all copyright lawsuits are filed by the Fields, and for the most part, copyright attorneys side with them and the validity of their claims. At least one judge and a professor of copyright law at Hastings College of Law at the University of California spoke up about the Fields’ claims of infringement.
After the Fields built their online business and saw their subscription numbers explode, they also noticed that their films were being downloaded and distributed for free. They didn’t want their business to be undermined and their subscriber base to be eroded by the availability of their work for free, so they hired an investigator who helped identify the culprits by IP address. The colorful debate the Fields have sparred in the legal world hinge partly on this method of identification, and partly on the fact that they file around three lawsuits per day. Copyright attorneys and judges have noted, “If you’re filing three lawsuits per day, that very much looks like an abusive model,” and one federal judge compared the Fields’ methodology to little better than an “extortion scheme.”
But the Fields’ own lawyer is quick to counter that lawsuits account for less than 5 percent of their income, and their primary purpose is to protect the business. The lawsuits filed by the Fields typically pursue “maximum statutory damages allowed under copyright-infringement law” which is around $150,000 per stolen movie. In an overwhelming percentage of the cases, defendants settle, most for anywhere between $2,000 and $30,000. Settling is cheaper than finding copyright attorneys for representation, and allows for anonymity. Nobody wants to become known for stealing porn, right?
But the IP address method of identifying defendants can be tricky, and one or two have fought the Fields’ suits, though none have come to trial. One defendant Jeff Fantalis had worked as a technology consultant and understood computers, and he fought the suit for a time, and represented himself. (Generally not advised by copyright attorneys everywhere). Fanatalis spent “a lot of sleepless nights and hundreds of hours of time” researching ways to leverage the legal system to identify flaws with the IP address method “hoping to create a road map for other defendants.” Calling the Fields copyright trolls,
Fantalis pointed out that “imposters can mimic other people’s I.P. addresses, neighbors can ‘camp’ on a wireless network, or decrypt a password and hack in and roommates share wireless networks,” resulting in unfair accusations that defendants are forced to settle on.
Fantalis ended up settling, too on confidential terms. And the Fields are not apologetic. Wishing “Congress would intervene with a solution that made litigation a last resort to deter piracy,” Mrs. Field reports that they have no intent to stop filing suits to protect their property.