This year alone, tens of thousands of BitTorrent users have been sued in the United States by filmmakers. Several law firms are helping out in these cases, most notably the United Stated Copyright Group (USCG) who sued thousands of alleged downloaders of the Oscar-winning film The Hurt Locker.
Soon after the practices of USCG were laid out in the mainstream press, several adult film producers hired lawyer Evan Stone to do the same for them. The procedure in all these cases is identical. Sue hundreds of BitTorrent users, and ask them to settle the case for a substantial sum instead of going to court for a full trial.
In previous articles we’ve dubbed this creative use of the legal system as a pay-up-or-else scheme. The number one priority for the people involved is to make money off alleged file-sharers, it’s a new business model that has proven to be very effective.
Last week hundreds of new suits were filed at the U.S. District Court for the Northern District of Texas. The case was filed by lawyer Evan Stone on behalf of Mick Haig Productions, and targets 670 BitTorrent users who allegedly downloaded Der Gute Onkel. No, not the 1912 short film that is in the public domain, but an unknown adult film.
The complaint that was filed alleges that Mick Haig Productions owns the copyright to the movie “Der Gute Onkel”. Technically, this may be correct as makers automatically hold the copyright to the content they produce. However, the title was never registered with the Copyright Office which could spell trouble for the ongoing cases.
In U.S. law there is plenty of jurisprudence that shows that one can’t pursue a case where the copyrights are not registered. In Positive Black Talk, Inc. v. Cash Money Records, Inc. the Fifth Circuit Court of Appeals held that a plaintiff must show that the Copyright Office has actually received the copyright application before starting a lawsuit.
In June 2010, Judge O’Connor of the U.S. District Court for the Northern District of Texas – the same Court where the “Der Gute Onkel” case was filed – cited this ruling and found that registrations not properly pled “are not in the case.” Again, this ruling affirmed that copyright has to be registered before bringing a lawsuit.
Since the lawyer, Evan Stone, failed to properly inform the Court that the movie in question is not registered with Copyright Office, he has not plead the case properly. For the alleged 670 downloaders this misstep is good news. If any of the defendants challenges the complaint through a motion to dismiss or motion to quash, it should be dismissed.
Alternatively, downloaders can argue that they never intended to download a hardcore adult movie, but that they were looking for the public domain movie with the same title. Perhaps they should then sue Mick Haig Productions for the disturbing footage they got to see instead.
Evan Stone was contacted for a comment but did not reply before the time of publication.