Las Vegas company dealt setback over adult movie downloads

By Steve Green

Monday, Feb. 21, 2011 | 12:05 p.m.

Las Vegas adult movie company Serious Bidness LLC suffered a setback last week in its copyright infringement lawsuit against 109 "Doe" defendants it claims illegally downloaded its production "Kayla Kleevage."

Serious Bidness sought to sue these defendants as a group, which would minimize its litigation costs, but federal Judge Royal Furgeson in Dallas last week severed from the case all but one Doe defendant and he halted discovery in the case.

Serious Bidness attorney Evan Stone through discovery wanted to identify the Does by issuing subpoenas to their Internet service providers including Cox Communications, the cable company in Las Vegas.

"The court finds that the discovery motion concerns matters that could materially affect the interest of the defendant Does, but because the defendants' identities have yet to be ascertained, the Does cannot represent their interests before this court," Furgeson wrote in his ruling.

Furgeson also ordered Stone to show cause why the court should not appoint attorneys to represent the Does' interests.

In severing from the case all but the first Doe, Furgeson found there was nothing in the lawsuit to indicate the defendants worked together to infringe on the "Kayla Kleevage" copyrights.

"Joinder is improper in this case because each defendant will also likely have a different defense," Furgeson wrote.

He pointed to a related court ruling finding "Comcast subscriber John Doe 1 could be an innocent parent whose Internet access was abused by her minor child, while John Doe 2 might share a computer with a roommate who infringed plaintiffs' works. John Does 3 through 203 could be thieves, just as plaintiffs believe, inexcusably pilfering plaintiffs' property and depriving them, and their artists, of the royalties they are rightly owed. "

The ruling means that if Serious Bidness wants to proceed with lawsuits against Does 2-109, it will have to sue them individually.

Similar orders were entered last week in several other porn downloading suits filed by Stone against thousands of Doe defendants.

These rulings were applauded by the digital freedom group the Electronic Frontier Foundation of San Francisco, which has been fighting some of the mass porn downloading lawsuits around the country.

"In these cases, the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lumped hundreds of defendants together regardless of where the IP addresses indicate the defendants live. To date, over 50,000 Does have been targeted in cases filed in West Virginia, Texas, Illinois, and the Northern District of California. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments, despite serious problems with the underlying claims," said the EFF.

The EFF said Furgeson's threat to appoint attorneys for the Does in these cases may provide the defendants with basic legal protections.

"In his orders, Judge Furgeson notes an essential feature of mass copyright litigation: unlike the normal case, in which a defendant is notified of early case developments and can intervene to protect his or her interests (such as by opposing a plaintiff's request to send out subpoenas), the Does in these cases are unlikely to have any idea a lawsuit has been filed, much less that the plaintiff is seeking their identity. Appointing an attorney ad litem for limited purposes is one way to address that problem and help ensure that the Does receive the same constitutional protections that must apply to any defendant in any litigation," said the EFF, which is also fighting Las Vegas copyright enforcement company Righthaven LLC in some of its lawsuits.