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December 17, 2010 8:30 AM

Judge Drops Thousands of Anonymous Alleged Porn Downloaders from Suits

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One of the harsh realities of business, if your business happens to be pornographic film production, is that your customers tend to prefer anonymity. And none more so than that portion of your customer base that is allegedly engaged in the illicit online sharing of such titles as Pornstar Superheroes and Massive Asses 5.

So earlier this year, when producers of pornographic films launched a campaign to crack down on Internet copyright infringement, their lawyers were reduced to filing complaints against thousands of John Doe defendants. One of those lawyers, West Virginia solo Kenneth Ford (who does business as the Adult Copyright Company), filed a series of complaints in federal district court in West Virginia, naming hundreds, sometimes even thousands, of defendants in each suit.

Ford noted to The American Lawyer recently that one of his suits included 9,709 John Doe defendants, who allegedly infringed the copyright on Teen Anal Nightmare 2. "I'm told that we've sued more defendants in one single case than has been done in the history of the U.S.," Ford said.

Alas for Ford and his porno film clients, that record has proved fleeting.

In seven orders issued Thursday, Wheeling, W. Va., federal district court chief judge John Bailey effectively dismissed complaints against all but seven of the thousands of John Doe defendants Ford sued in West Virginia. (Here's one of Chief Judge Bailey's orders, in a 1,243-defendant case brought by Third World Media, which the judge describes as "the alleged owner of the copyright of the hardcore pornographic film "Tokyo Teens.") The judge stopped short of dismissing the pornographic film producers' suits altogether, but left just one John Doe defendant in each case.

"John Doe argues that the plaintiff has failed to show that the copyright infringement claims against him and the other Doe defendants arise out of the same transaction, occurrence, or series of transactions or occurrences," Chief Judge Bailey wrote. "This court agrees....Further evidence of misjoinder is found in the undeniable fact that each defendant will also likely have a different defense."

You may be wondering which brave John Doe stood up to argue on behalf of his fellow accused porn downloaders. The answer is not clear from the Third World Media docket, in which seven pro se "interested parties" made appearances. But opposition to the Third World suit also seems to have come from Time Warner Cable--one of 20 Internet service providers served with a subpoena directing it to disclose the identities of alleged infringers based on their IP addresses. Time Warner, represented by Latham & Watkins, moved to quash the subpoenas; Bailey effectively did just that in Thursday's orders.

The judge's orders do allow Ford to refile individual amended complaints against each of the Does within 30 days, though in a footnote Chief Judge Bailey says he will only allow amended complaints involving defendants with a clear connection to his jurisdiction to proceed. (Bailey also ordered that the plaintiffs must pay a separate filing fee for each new complaint--no small consideration given the size of the original defendant pool.

Ford did not immediately return a call seeking comment.

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