We’ve spent the last 10 years hearing about the evil forces of the RIAA suing single mothers and grandparents without a computer. The entertainment industry has seen declining CD sales for a number of years. Whether this is attributable to piracy and programs like Napster is hotly debated.

Behind the scenes, the RIAA has done more than sue individuals. They’ve blocked businesses from offering new services. The RIAA has been busy pioneering new anti-piracy technology.

The RIAA has also done a lot to work on new legislation. DMCA is a four letter word in many circles. They’ve also included new provisions for college campuses in the Higher Education Opportunity Act (HEOA) that require Universities to create programs to combat piracy, and Congress has seen fit to tie Federal funding to these programs. Universities spend tens of millions of dollars per year on technology and man hours policing the copyright of other for-profit organizations.

Satisfied with their victory, the RIAA announced that they won’t be bringing any more lawsuits.

This legislation has now paved the way for the Porn industry to take advantage of the structure that the RIAA helped establish.

Movie studios apparently see this as an opportunity for a new revenue stream. The sad part is that the studios may be using this as a way to make up for the funding for flops. They are using the movie, The Expendables, as a test case for this. They recently filed the largest John Doe lawsuit ever for the star studded movie that had disappointing results at the box office. If all of these defendants settle for for an average of $4,000-$5,000 (which seems to be close to what other lawsuits have settled for, the studio could stand to make an additional $100 million on the movie. This particular movie only made $103 million in the US box office.

There are a few differences between movie studios and porn studios when it comes to DMCA notices. Chief among these is embarrassment about being caught. If your spouse, your parents, your school, or your employer see a notice that you have been accused of stealing porn…whether it is legitimate or not, it will damage relationships in a way that movies can’t touch. (No pun intended.)

The closest single porn lawsuit in size to the Expendables case targets 15,551 BitTorrent users for downloading a handful of porn flicks with titles such as Big Dick Glory Holes and Spin on My Cock. A judge has not decided whether to authorize subpoenas in that case.

Unlike the RIAA or the MPAA, porn companies will usually include a settlement offer with their notices. This makes the DMCA notice more than just a takedown request. The DMCA was written for ISPs to be notified that their subscribers were sharing copyrighted content. For the RIAA the argument ends there.

This puts the ISP in a difficult position. Normally with a DMCA notice, they may notify the user or they may even turn off the users Internet access. In fact, a number of ISPs have announced that they will create a 6 strikes policy against copyright infringers.

The porn approach is problematic for businesses because it means that the ISP will feel compelled to pass the settlement portion of the DMCA notice along to the user. Businesses can be compelled via a subpoena to disclose the identity of their users, but including a settlement notice short circuits the subpoena process. ISPs won’t want to be in a position with their subscribers saying during a lawsuit that they would have settled a case had they only gotten the initial settlement offer.

The problem with the current DMCA process is that places the burden of proof on the subscriber to disprove infringement rather than on the copyright holder to prove their case. Especially in the case of an accusation from a porn studio and the associated embarrassment, an individual may be induced to settle a case.

There is no obligation on the part of the ISP to do any of their own fact checking to view network logs to see what, if any, traffic was coming from the user’s computer at the claimed time of infringement.

Especially with the huge increases in the numbers of DMCA notices, the incentive to do any due diligence on the part of ISPs has been completely removed. ISPs can only expect the numbers of DMCA notices to continue to increase as new content holders get in on the act. As many content holders have outsourced their monitoring activities, these monitoring companies are paid based on the number of infringers they find. These companies are very secretive in their methods, but these methods are questionable. It’s unclear for example, if a failed or incomplete download might result in a notice of infringement being sent to the user. If ISPs are not keeping detailed logs and a user removes the infringing file (assuming they remove it completely), the only evidence is the word of the copyright holder that an infringement took place.

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