January 24, 2014 in Business, City

‘Elf-Man’ download lawsuits target Spokane residents

By The Spokesman-Review
 
Elf-Man trailer

Watch the official trailer for Elf-Man.

A flurry of copyright lawsuits filed in Washington state has given added publicity to BitTorrent, a popular Internet method of downloading TV shows, movies and pop music.

An East Coast company that produced a made-for-video movie, “Elf-Man,” is suing dozens of Washington residents, alleging they downloaded illegal copies of the film over the Internet.

The federal copyright lawsuit originally named 29 people as defendants in Spokane and 150 in Seattle.

After judges allowed some defendants to be dismissed, the cases now have two dozen defendants in Seattle and roughly 12 remaining in Spokane.

BitTorrent is computer protocol used to share and download files; many people use it to download illegal copies of movies and other content from sites such as The Pirate Bay. Many other users, however, use BitTorrent to legally share material.

The suit says the defendants broke the law by downloading a copy of the movie “Elf-Man,” a holiday comedy released in December 2012. The movie was never intended for a theatrical release.

Nearly all of the defendants in Eastern Washington have denied they downloaded the movie. About six Eastern Washington defendants never responded, leaving the court the option of ordering a default judgment in favor of Elf-Man LLC.

One of the Spokane defendants, Spokane Valley resident Ryan Lamberson, hired a team of Spokane attorneys to answer the accusations with an aggressive counterclaim.

His attorneys, who work for the Spokane firm Lee & Hayes, suggest that the “Elf-Man” suits are examples of copyright “trolling.”

That term has been applied to companies that aggressively sue large groups of Internet users, accusing them of illegal downloads and pressuring them into monetary settlements rather than facing potentially stiffer penalties at trial or paying thousands more to fight the suit.

Christopher Lynch, one of Lamberson’s lawyers, told the court that the “Elf-Man” circumstances suggest it was “seeded” online primarily to promote its downloading from BitTorrent sites.

He noted the company that released the film has failed to sue any of the websites where people can download it illegally.

His conclusion: Either Elf-Man LLC uploaded the movie on those sites as part of a scheme to target downloaders, or it negligently allowed others to obtain a pre-release copy of the movie and place the movie on those sites.

The timing of the release of the film is telling, said Lynch and fellow attorneys Jeffrey Smith and Rhett Barney.

The suit alleges Lamberson was identified by investigators as downloading the movie early on Dec. 2, 2012, two days before the official release date. It was only later that month that sites such as Amazon or the Redbox kiosk service first got copies of the movie.

“Ryan didn’t download it, and he had never heard of this movie (at that time). It wasn’t like there was any marketing for ‘Elf-Man’ that would have made him aware of it before it was released,” said Lynch.

Lamberson is a single father, Lynch said.

The court in Seattle recently quashed the Elf-Man LLC lawsuit, agreeing with one defense motion that the basis for the action was unjustified.

That same federal judge, however, allowed attorneys for Elf-Man LLC the option of refiling a modified complaint.

In contrast, U.S. District Court Judge Thomas Rice this week dismissed only one part of the Elf-Man complaint, leaving two other legal arguments intact. For now, that allows the Spokane cases to proceed.

The Washington suits are not the first instances of “Elf-Man” copyright suits.

The same attorneys for the film company filed similar copyright suits in Tennessee, Oregon and Colorado. The movie’s creators are based in Frederick, Md.

The one actor in the movie with previous mainstream movie credits, Jason “Wee-Man” Acuna (known for roles in “Jackass” films) has publicly repudiated the copyright suits, saying he disapproves of suing downloaders.

Among Elf-Man LLC’s lawyers are Monty and Maureen VanderMay, with offices in Salem.

In email messages, Monty VanderMay said his client is considering refiling its lawsuits in Seattle and plans to continue the Spokane lawsuits.

He said: “As always we in conjunction with our client will continue to evaluate these claims based on the evolving law, technology and facts.”

Seattle attorney John Whitaker is representing several defendants in Seattle and two defendants in the Spokane case. One of his clients is a Spokane resident who Whitaker said is a woman in her 70s who lives by herself.

“She absolutely would never have downloaded this movie,” said Whitaker.

He calls what Elf-Man LLC is doing a form of barratry – the legal term for litigation solely intended for harassment or profit.

The suits state that a copyright infringement penalty could reach $30,000. In cases of “willful” infringement, the penalty could be $150,000.

“This is the kind of action that gives lawyers a bad name,” Whitaker added. “It’s an action filed solely for the reason of trying to force people into making payments through fear,” he said.

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