'Hurt Locker' lawyer: Illegal sharing must end (Q&A)

Thomas Dunlap is the attorney who has revived the practice of suing people who illegally share files online. Get to know him.

This man may soon know your name.

Thomas Dunlap Dunlap, Grubb & Weaver

Thomas Dunlap is the attorney representing at least a dozen independent movie studios, including the makers of the Oscar-winning film, "The Hurt Locker." If you illegally shared any of his clients' films online then Dunlap, a founder of the law firm Dunlap, Grubb & Weaver may have collected your Internet Protocol address. He may, at this minute, be requesting a subpoena that compels your Internet service provider to turn over your identity.

Dunlap and his firm, which also operates as U.S. Copyright Group, will then likely file a copyright complaint against you in federal court. But before that, he will give you an opportunity to settle the case for maybe as much as $2,900. This has already happened to many of the 5,000 people Dunlap has accused of pirating "The Hurt Locker."

Dunlap appears to be the gung ho kind and well-suited for the copyright wars. Educated in Switzerland, fluent in French, the former U.S. Army Captain has a license to drive a tank. He has a master's degree in biotechnology in addition to his law degree and enjoys kickboxing and piloting aircraft. He has almost single-handedly revived the practice of suing individual file sharers for copyright violations, which appeared to have died after the music industry dropped its five-year litigation campaign nearly two years ago. Now, even the adult-film industry is trying to adopt a similar antipiracy strategy.

Dunlap has, so far, overcome every courtroom attempt to derail his lawsuits. The Electronic Frontier Foundation, the American Civil Liberties Union, and several ISPs have claimed he is wrong for corralling thousands of defendants into individual suits or for requiring ISPs to give up their customers' information.

But to some of his clients, Dunlap is part protector and part avenging angel . To them, they are the victims in the file-sharing story. They make movies, often with their own money, and believe they have a right to be compensated by those who watch them. Unlike the big film studios, the indies have often lacked the means to defend themselves against piracy--at least until Dunlap came around. He agreed to be interviewed by CNET but only by e-mail.

"We saw an 80 percent reduction in the number of torrent downloads of the "Hurt Locker" film within a week of the day we announced that Voltage Pictures [the studio that made the film] had become a client.

Q: What is the goal of this litigation campaign? Are you interested in becoming a deterrent or do your clients look at you as a means to recoup losses from piracy?
Dunlap:The primary goal of any law firm in any litigation is to zealously act in the best interests of their clients. Our clients have one primary goal for the most part, which is to be able to make their next film. From this overarching goal there are two things that need to happen. First, illegal downloading/free distribution of films has to end. Part of the goal of the campaign is to redirect people who download films for free to spending the money on a movie rental or VOD viewing. Because many secondary channels, which are where most indie films derive 100 percent of their revenue, are now underused as a result of the use of torrent platforms, the second consideration is recovering the cost of making the film while deterring others in an effective manner.

By way of example, according to our internal statistics we saw an 80 percent reduction in the number of torrent downloads of the "Hurt Locker" film within a week of the day we announced that Voltage [the studio that made the film] had become a client. This is certainly one of the primary intended effects, which leads us to believe that in a short time the legal efforts we have made for our clients have been very successful.

How many clients do you have and how many suits in total have you filed and plan to file?
Dunlap: We cannot tell you the number of clients we have, but that there are well over 300 film properties owned by our clients in the aggregate. We have filed nine lawsuits with Doe defendants, two of which have been voluntarily dismissed. Seven suits remain pending. From the two suits we have dismissed, we are now in the process of pursuing individual Doe defendants. We cannot comment on pending lawsuits that have yet to be filed, except to say that there will be more.

You've said that you will hire local counsel in the areas where you file the suits. Has that process begun?
Dunlap: We continue to add attorneys to our network to pursue cases against individual defendants. There are a number of attorneys who have already signed agreements with our firm, and a number that we are in the process of adding.

How do you define file sharing and the impacts on the film industry, most specifically the indie filmmaker?
Dunlap: To our knowledge, file sharing has had a huge impact on the indie film industry. Most of the information we have is limited to the first-hand knowledge of its impact on our indie film clients, so it is mostly anecdotal. Bearing this in mind, it is my experience that indie film, for the most part, does not enjoy large box office revenue. As a result, this particular economic subset of the industry is left to rely on secondary market sales for DVD and VOD distribution, which returns very little per viewing relative to a box office sale.

"We cannot comment on pending lawsuits that have yet to be filed, except to say that there will be more."

Many people ask me how you chose people to file against. With the initial 5,000 John Does listed for "The Hurt Locker," some of whom are likely known to you now, how did you pick these people? Was it geographic location, the date they allegedly shared the film, or a particular software they visited?
Dunlap: We chose defendants according to the quality of the evidence we have against them, a big part of which includes the timeliness of the data. Because there are a large number of potential defendants, we rely on the most recent data available to maximize the time we have to pursue claims within the three-year statute of limitations for copyright infringement.

What is your success rate? People at EFF have said that they think your IT team has flagged a lot of people who appear to be innocent. Can you tell us about what safeguards you have in place to ensure you aren't going after innocent people?
Dunlap: The people at the EFF, whomsoever they may be, also think there is a First Amendment right to remain anonymous when downloading copyrighted content. I am not sure where they have acquired their belief, but to date most of the people we have settled with have indicated the downloading did in fact occur. We have a rigorous process to identify potential defendants in these cases, which includes file verification protocols.

You guys are a D.C. firm, a long way from Hollywood. How did you come up with the idea for this legal campaign? Do you empathize with copyright owners?
Dunlap: This method for copyright enforcement is nothing new. We are literally filing lawsuits against copyright infringers. Nothing more complicated than that. The only difference, and why we believe it has attracted attention, is the scale of the litigation, not the substance. Over the last 10 years we have been involved in copyright claims like the ones at issue in our various film cases for sports companies, software companies, retails goods companies, and stock photo companies. A number of software companies are well known for their avid copyright enforcement campaigns. We do empathize with copyright owners.

What if a person has downloaded several movies from studios you represent? Is there a way they can settle for all infringing acts? In other words, if a person pays the $2,900 to settle "The Hurt Locker," will that mean they are exempt from getting sued for another film as well? If not, is there a limit to how many times you will file suit against a single accused file sharer?
Dunlap: We have encountered this situation only a few times. We have a duty to advocate for each of our clients. A settlement with a defendant on one film would have no impact on a claim against that same person for a different film. If someone downloaded "Far Cry," owned by Boll AG, and then settled out of court, and we subsequently discover they have also downloaded "Hurt Locker," owned by Voltage Pictures, LLC, it wouldn't be fair to Voltage to release that infringer, just because they had paid to settle the "Far Cry" claim. They are independent claims of completely unrelated clients, and we have to treat them as such.

Are you connected to ACS: Law, the British firm that has made some headlines after it was hacked over the weekend? Apparently, there were some e-mails uncovered that indicated you guys were working together.
Dunlap: We are not and never have. We are in entirely different legal systems. We did meet Andrew in Cannes, but have passed on working with him thus far.

Some people from the music industry told me that they don't think suing individuals can be profitable. They say the costs associated with their five-year litigation campaign were much too high. They suspect that for you guys, once someone claims they are innocent and is prepared to fight all the way, similar to Jammie Thomas, it will eat up all your profits. Is that true? Can you share anything at all about your business model.
Dunlap: We look at the film industry in a different light. Each film contains one to two hours of video content. The quantum of damages in a copyright case is, in part, tied to the content at issue and similarly to the conduct. Film content is significantly more dense and expensive to make than music content on a per film basis when compared to individual songs.

This fact significantly alters the damages calculation in the event a verdict is reached against an individual. Similarly, unlike some of the server-based sharing technologies, torrent sharing requires a fairly complex set of steps to set up and we believe adds to the ultimate legal liability of an individual downloader when viewed side by side with other methods of downloading or sharing files.

 

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