Who Is Winning the War? Update on Copyright Lawsuits

You might have thought that greedy entertainment execs would have gotten the message and backed off. Especially after Tanya Andersen, a single mom, who was sued by the RIAA for "stealing" songs on the Internet, got the RIAA to very publicly drop their case against her - with an award of attorney's fees that compensated Ms. Andersen's counsel for his time at $325 an hour.

It seems incredible, but just a few years ago the trade organization behind all the major music companies was employing strong-arm tactics against thousands of alleged music downloaders, including letters demanding that the recipient fork over $4,000 to $5,000 immediately, or risk financial ruin. Not surprisingly, this approach, and the legal tactics required to pull it off, backfired.

Happily, the RIAA has since late 2008 abandoned the strategy of threatening to sue music's biggest fans. The turning point may have been in April of 2008, when Business Week recounted how disabled single mom Tanya Andersen was standing up to these bullies.

But the wrong-headed tactics that totally backfired against the music business have recently reappeared in some of the shadier corners of the porn and independent film worlds.

In just the past 18 months, a few disreputable indie film producers have hired a law firm that appears to be using the same legal tactics (strong-arm people who have downloaded files from torrent sites) that failed the RIAA.

Making money from threat and harassment is not how most lawyers operate. And to my knowledge it's never really worked as a way to make money for mainstream film producers. But a small firm of lawyers (one of them actually named "Grubb" ) have gone into business with some shady film producers (e.g., Philippe Martinez and his sister Karinne Behr), offering to set up a website to collect from a list of names extracted using tactics that a federal Judge recently called "inexcusable."

Apparently, Dunlap Grubb and Weaver have begun offering no-risk money for producers of failed indie films, using tactics that resemble those used by the RIAA and subsequently refined by Dunlap et al in a squeeze they've used against people who are alleged to have illegally downloaded porn films.

Dunlap et al know (from their own experience) that threats of public humiliation - especially when made by very aggressive lawyers - have reaped serious money for some attorneys and for some porn producers. It's said that even innocent people have forked over more than a thousand dollars when they've been accused of illegally downloading porn.

Dunlap, Grubb, and Weaver also know just how to ask courts for subpoenas - to obtain names and addresses of people who have visited torrent sites - knowing that, once they've got such a list, they can use it to get frightened defendants to settle and avoid further (more public) embarrassment.

Unethical lawyers could use the discovery process to generate a list of names that could be intimidated into payments - without ever proceeding to trial (where thorny issues like jurisdiction and proving who downloaded what might come up). But one of the steps in that scheme - getting a judge to approve expedited subpoenas to go rummaging in the records of Internet Service Providers ("ISPs") without expeditiously proceeding in court against identified defendants - has recently come under fire from a judge in a Federal Court. In early June 2011, Federal Judge Robert Wilkins of Washington, DC blasted the conduct of Dunlap, Grubb, and Weaver (in a suit involving a film called "The Expendables" where the subpoenas were languishing), calling it "inexcusable."

Now, whether Dunlap, Grubb, and Weaver can continue using their tactics (honed in porn lawsuits) is an open question. According to a report in arstechnica "all of Dunlap’s other cases besides the porn films are totally dead."

This can't be good news for Philippe Martinez and Karinne Behr. That's because their production company, West Bay, has hired the "inexcusable" Dunlap et al to go after thousands of alleged illegal downloaders of their failed film, "The Steam Experiment" aka "The Chaos Experiment."

If you care about fair business practices in the movie business and the abuse of the legal system, you might want to follow the careers of Philippe Martinez, Karinne Behr, and Dunlap, Grubb and Weaver. If you've received a letter from them, you might also want to remember that, in a similar battle with the RIAA, Tanya Andersen came back even stronger: She counter-sued the RIAA for legal fees and for "conspiracy, negligence, and abuse of the legal process."

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