Here come 'Hurt Locker' file-sharing subpoenas

For people worried that they may be accused of illegally sharing "The Hurt Locker," a movie about defusing bombs, the hope was that efforts to chase them down would fizzle out.

No such luck. The film's producers are finally moving to acquire the names of people they accuse of using peer-to-peer services to share unauthorized copies of the movie that won this year's Oscar for "Best Picture." Qwest Communications on Monday notified a customer in Denver that the Internet service provider has received a subpoena from lawyers representing Voltage Pictures, the production company that made "The Hurt Locker."

"It is our company policy to notify our customer when we have received a subpoena requesting their records in civil matters," Qwest informed the customer, who contacted CNET on Thursday and asked to remain anonymous. "As required by law, to the extent we have these records we will furnish the records on or before September 30, 2010."

Voltage Pictures is just one of at least a dozen independent studios that are participating in an antipiracy campaign spearheaded by the Washington, D.C., law firm of Dunlap, Grubb & Weaver. Unlike the major film studios, smaller production companies don't have the resources to fight illegal file sharing. DGW offers to file copyright complaints on their behalf and in exchange takes a cut of whatever fees the suits generate.

DGW representatives were not immediately available for comment.

Landing Voltage Pictures as a customer was a coup for DGW. "The Hurt Locker" has lifted the firm's profile with indie studios, media, and file-sharing community. Some members of the latter category were shaken by the threat of litigation. The days when entertainment companies filed copyright complaints against individuals were supposed to have ended when the music industry stopped filing suits in December 2008.

Court battles loomed once more when DGW began filing copyright suits early this year. In May, "The Hurt Locker" producers filed suit against 5,000 "John Does". DGW attorneys said their investigators had obtained Internet Protocol addresses belonging to the accused, but needed to subpoena ISPs to acquire the names of each Doe defendant. Since then, dozens of nervous people have e-mailed me asking when DGW might begin notifying people they are being sued. That day has apparently arrived.

"The Hurt Locker" is far and away the most notable film working with DGW. "The Hurt Locker," a war film about soldiers whose job it is to disarm bombs in Iraq, was nominated for nine Academy Awards and won six. Not surprisingly, the movie was a popular download on peer-to-peer sites and now a lot of people could get sued.

In legal documents, Voltage Pictures has blamed the movie's relatively poor domestic performance on illegal file sharing.

As of March 21, the movie had grossed $16 million domestically, but took in $40 million overall. According to reports, the film's production budget was $15 million. The film leaked to the Web five months before the movie's U.S. debut.

Delayed by opposition
So why did DGW wait so long between filing the Doe suits and sending subpoenas to ISPs? Well, the law firm certainly had its hands full with all the opposition it faced. The Electronic Frontier Foundation and American Civil Liberties Union took DGW to court about whether it was proper to name thousands of individuals in a single lawsuit. Time Warner Cable objected to being compelled to look up thousands of customer records and claimed it was an undue burden. Just last week, an ISP from South Dakota filed a motion to quash one of DGW's subpoenas and argued that a U.S. District Court in Washington, D.C., doesn't have jurisdiction over it.

In the EFF case, a federal judge sided with DGW, but EFF and the ACLU did convince the judge to prod DGW to change the language it uses when notifying accused file sharers of the allegations. EFF and the ACLU argued that former notices were confusing.

In a correspondence between DGW and the Qwest customer who contacted CNET, the law firm told him that file sharers have a right to fight or "quash" the subpoena and specified the kind of information Voltage Pictures requested from Qwest. DGW appears to have done away with passages about how copyright owners can sue copyright violators for up to $150,000.

"Well, it's not what I would have written," said Cindy Cohn, EFF's legal director. "I think the letters are much better than they were, but I don't think [DGW] has done a great job of explaining what is happening."

Another change from the previous forms is the price accused file sharers can pay to settle their case. For example, last May, DGW gave Houston-resident John Harrison a chance to settle out of court for $1,500. For allegedly downloading "The Hurt Locker," DGW told the Qwest customer from Denver that settling the case early would cost $1,900, according to documents reviewed by CNET.

When asked what people who find themselves accused by Voltage should do, Cohn advised them to go to EFF's site where they can find information about attorneys, many of whom charge a fee, but have experience in this field.

Cohn said that just being accused by Voltage doesn't mean an innocent person has to fork over money. There is also the option of fighting in court. She said that some of the attorneys who have represented people accused by DGW have reported cases where the defendants didn't know anything about BitTorrent, least of all how to install it. Cohn said she has seen far more of these kinds of complaints than when the music industry was pursuing a similar legal strategy against file sharing.

"I'm quite concerned that the techniques they are using are not very good," Cohn said. "Just because you show up with a bunch of IP numbers doesn't mean they're any good."

Cohn said she hopes people who believe they have been wrongly accused will take the issue to court. She added that because copyright laws are so "draconian" and the costs of litigating so high, she understands why people wouldn't want to pursue that course.

"When it comes to copyright," Cohn said "the law is set up so that truth, whether someone actually violated the law or not, takes a back seat to financial considerations."