Pornography, as many people know, is largely free across the internet. But porn that purports to be classy? Dozens of Floridians are learning the hard way that the people behind some of the most popular high-end porn companies want them to pay.
Strike 3 Holdings, the high-end porn production company that owns the popular sites Blacked, Tushy, Vixen, and Blacked Raw, has just sued 60 anonymous Floridians for illegally downloading dozens, sometimes hundreds, of high-def films like “Hot Wife,” “Racks 2,” and “Ms. Tushy,” demanding thousands of dollars per film for copyright infringement.
The lawsuits, filed at the beginning of the month, are part of a national push of 1,200 cases the company is bringing across the country.
Strike 3 Holdings’ websites are run by Greg Lansky, a French-born, Beverly Hills-based porn producer known for his self-professed efforts to change the perception of porn into more of an art form. Lansky’s brands have drawn attention in recent years for their production values: paying actors more and filming in high definition with Hollywood-style budgets and sets. They have won numerous adult-film awards, and in legal filings the company states that Lansky “has been dubbed the adult film industry’s ‘answer to Steven Spielberg.’ “
The three-year-old company has built an impressive empire, with one of the highest paid-subscriber volumes of any adult website and the top-selling adult DVDs in the United States. Each site has a Netflix-like subscription paywall — but that hasn’t stopped them from being plagued with the same issue that porn-for-pay has faced since the dawn of the internet age: stolen content.
Strike 3 has aggressively pursued people who illegally post its videos online to free YouTube-like porn-hosting platforms, contracting with a company called xTakeDowns.com to send as many as 50,000 take-down notices (the equivalent of an internet cease-and-desist letter) a day. The take-down site has handled more than 12.6 million cases for the company and estimates that piracy of Strike 3’s content is 6 percent of all adult piracy, xTakeDowns.com co-founder David Robertson told Rolling Stone in an April profile on Lansky.
In September, Strike 3 launched a new tactic to fight piracy — going after individuals who illegally watch and share its videos through BitTorrent, a popular file-sharing service that lets people anonymously share music, videos, and other file types. Those files are often uploaded in violation of the content’s copyright. It has been around since 2001 and often been at the center of the internet copyright debate.
Companies that bring massive amounts of litigation against BitTorrent downloaders have been called “copyright trolls,” an unfavorable term that stems from the “patent trolls” known for buying up patents and filing lawsuits based on them without ever creating a patent or product themselves.
South Florida has a long history of these cases. When copyright-troll lawsuits took off in 2010, growing from 4 percent of all copyright cases to a peak of 58 percent in 2015, the Prenda law firm, which had a South Beach office, led the charge.
The two lawyers behind the firm brought thousands of BitTorrent-porn copyright cases against IP addresses, then threatened massive charges and to reveal defendants’ identities unless they settled quickly. The lawyers went as far as flying to porn conventions and hiring actors to film their own porn to be posted to BitTorrent so they could turn around and file lawsuits against the people who had downloaded the files. Between 2011 and 2014, they collected some $6 million in settlements before the feds stepped in. Both have been indicted.
“There is no consistent definition of a copyright troll,” said Mitch Stoltz, who is a lawyer with the Electronic Frontier Foundation and tracks online copyright issues, but, he adds, “they seem to be using essentially the same litigation playbook as other groups that we’ve called copyright trolls.”
The in-house counsel of Strike 3’s Vixen brand is Emilie Kennedy. She was one of the lead lawyers on the litigation campaign of Malibu Media, another porn company (which EFF has called a copyright troll) that in 2016 was the leading filer of copyright-infringement cases nationwide.
Strike 3 and other porn companies that use these mass-litigation tactics differ from patent trolls because they create their own content.
“Our ultimate goal is to just simply get people to pay for our content the right way,” said Lincoln Bandlow, a lawyer who is the coordinating counsel on all 1,200 cases.
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“A lot of critics, and I think some judges, are concerned that [production companies] are doing this for revenue reasons and not deterrent reasons,” said Jeffrey Antonelli, a Chicago lawyer who specializes in defending BitTorrent cases and has represented anonymous John Does in hundreds of cases against Strike 3 and other porn and film companies.
But much like with its porn, Strike 3 is attempting to differentiate itself from its predecessors in the porn-copyright-lawsuit world. Bandlow says the company isn’t interested in revealing John Doe names or making money from the lawsuits, just in reducing copyright infringement. Even the employment of Bandlow, who works for Fox Rothschild — a national law firm of 800 lawyers and 21 offices — adds more legitimacy than other companies pursuing these cases have had. Strike 3 also differs from its predecessors in that it is not sending defendants threatening settlement-demand letters.
But there is a debate over how accurate the IP-address-identification services are. A January article in the Iowa Law Review titled “Defense Against the Dark Arts of Copyright Trolling” estimated that as many as one third of the people being sued in these John Doe lawsuits are innocent. Strike 3, Malibu Media, and some independent film studios all use the same German online investigation company to identify IP addresses, sometimes including testimony from the same investigator in court filings.
“My concern, like any defense attorney, is whether the data is valid,” Antonelli said.
Bandlow says the rate of mistakes is very low, and Strike 3 readily drops cases when mistakes are found. There is no hard data to say how frequent misidentification happens.
The majority of defendants in BitTorrent copyright lawsuits settle, innocent or not, usually for between $1,000 and $8,000, as penalties for copyright infringement can get as high as $150,000 per film and the courts have been unpredictable about how they apply the law.
“It’s a bit of litigation Russian roulette,” Stoltz said.