Wednesday, April 18, 2012 9:59 AM PT
Attempt to Settle May
Leave Porn Titan Liable

     SAN FRANCISCO (CN) - An Internet porn distributor must face claims that it tried to extort a woman whose Internet service may have been used to download an adult video titled "Amateur Allure Jen," a federal judge ruled.
     Liuxia Wong says her name came up when Hard Drive Productions subpoenaed the Internet protocol addresses associated with illegal downloading of its film. When Hard Drive sent Wong a settlement demand for $3,400, she says she repeatedly proclaimed her innocence but could not shake the Arizona-based company.
     Hard Drive then filed suit against a single anonymous defendant using Wong's IP address - a tactic Wong says the company used to expedite its deposition of her - and lowered its settlement demand to $3,000.
     Wong, a Solano County resident, then sued Hard Drive seeking a declaration that she is not liable for any copyright infringement and that the film in question is not copyrightable because pornography does not "promot[e] the progress of science and the useful arts."
     U.S. District Judge Yvonne Gonzalez Rogers said Wong has a case for declaratory relief because that claim serves to help litigants facing an immediate controversy.
     "Hard Drive's protestations in its motion that it is not seeking to hold Wong liable in [its lawsuit] are all couched in qualifying 'not now' and 'not likely' language," Rogers wrote.
     "There is no statement withdrawing its argument, made abundantly clear in connection with its prior settlement demands, that Wong would be vicariously liable even if the downloading had taken place without her knowledge on her internet connection," she added. "Despite its suggestions to the contrary, Hard Drive has not pointed to any written agreement not to seek to hold Wong liable for infringement."
     Hard Drive also failed to prove that Wong improperly filed her lawsuit in the Northern District of California instead of the Eastern District, which contains Solano County.
     "First, the court notes that Hard Drive does not dispute that the court has personal jurisdiction over it, nor does Hard Drive offer any facts in support of its motion to show that personal jurisdiction in the Northern District would be improper," Rogers wrote. "Second, the allegations here are that Hard Drive initiated litigation in which Wong has potential liability. .... The litigation and settlement communications in [Hard Drive's] action were initiated by Hard Drive in the Northern District."
     The judge also refused to dismiss Wong's action as duplicative of Hard Drive's still pending lawsuit.
     "The rule is generally applied when actions are pending in different federal courts, which is not the situation here," Rogers wrote.
     Hard Drive must file and serve its answer to Wong's first amended complaint by April 30.