Porn Crimes, Tech Wars and Saving the Gunnison Grouse

In our third episode, we take a look into the digital fallout of two California cases.

First, we dive into the sisterhood formed by young women coerced into filming pornography by GirlsDoPorn, a company that promised not to post the videos online. Then we take you to an Oakland courtroom, where Fortnite creator Epic Games is battling Apple over its tight grip on its app store.

Lastly, we see how efforts are going in Colorado to revitalize the population of a small bird with impressive features: the Gunnison sage grouse.

Special guests:

• Florian Ederer, economics professor at Yale University
• David Olson, law professor at Boston College
• Herb Hovenkamp, antitrust law professor at University of Pennsylvania

This episode was produced by Kirk McDaniel. Intro music by The Dead Pens. 

Editorial staff is Ryan Abbott, Sean Duffy and Jamie Ross.

Transcript

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Bianca Bruno: Welcome to Sidebar, a podcast by Courthouse News. I'm Bianca Bruno, one of your hosts, and a Courthouse News journalist based in California. This is our third episode, bringing you the top legal stories you need to know from America's courtrooms from coast to coast. This week, my colleague Martín Macías interviewed me about a case I've been following since 2019, which brought together young women to seek justice against their sex traffickers. In the end, they formed a sisterhood bond that has sustained their quest for justice. More than 20 college-age women were coerced into filming pornography by a company which promised the videos would never be posted online. The women's civil lawsuit against the company, called GirlsDoPorn spurred federal prosecutors to file human trafficking charges. This month, a porn actor and recruiter for the company was sentenced to 20 years in prison by a federal judge in California. Here's my conversation with Martín about the latest in the case. 

Macías: Hi, Bianca, good to chat with you. 

Bruno: Nice to talk, Martín.

Macías: So, can you fill in more of the background on this case? What exactly happened to these women?

Bruno: The women who filmed with GirlsDoPorn were between 18 to 22 years old, and they were college age. Most of them were in school or trying to go to school and needed money to pay for that. And they applied to these modeling advertisements that were posted on Craigslist seeking college coeds to do clothed modeling. Well, that was essentially a bait-and-switch scheme where they eventually found out either through email or phone calls, or not even until they agreed to film the shoot, that they were actually being recruited to film porn. Many of the women were reluctant to do that, obviously, because they wanted to do clothed modeling, or maybe lingerie, but not nudity. The owner, Michael Pratt, and his videographer and friend, Matthew Wolfe, were from New Zealand and so they had accents and told these women the videos would get published in Australia. And of course, that turned out not to be true. GirlsDoPorn is a website and the women did not know that, they found out that the videos were actually published online, including one of the most visited websites in the world, Pornhub, and so there was really intense follow-up for them. You know, their family and friends saw the videos, some of their co-workers did. Some of them lost jobs.

Macías: Can you explain how the women found each other and how they decided to file a civil lawsuit?

Bruno: One of them actually kind of did a reverse search where there was this website called Porn Wikileaks, which was used to reveal the identities of the woman who filmed for GirlsDoPorn. And women use that website to find other women to reach out to them. There was also another woman in the civil suit, she went on the GirlsDoPorn advertisements on Craigslist seeking models, you know, after she had filmed with them and knew they weren't seeking models, they were seeking porn actresses, and she would post her own ads on Craigslist warning women not to respond and telling them what their business actually was. And so they kind of used the tools of their oppressor, of GirlsDoPorn, to kind of flip that on its head and to find one another, and create the support system and obviously seek justice in court.

Macías: During the civil trial, federal prosecutors filed human trafficking charges. Can you talk about the significance of that and how it changed the case?

Bruno: More than 20 women testified in court or via videotaped deposition in the civil trial, and that was essentially a contract fraud trial. The women were prompted to sign these release forms just prior to filming porn. Some of them had been given marijuana or alcohol and were incapable of you know agreeing to whatever they were signing. The forms did not mention GirlsDoPorn or the website. It mentioned shell entities of the company and so they really did not know what they were signing or what they were signing up for. And so based on their testimony of that and including some of them testifying that they were assaulted and that they felt that they couldn't leave that they were held hostage, there were federal human trafficking charges filed. And so it was really neat to see a civil case turn into a criminal case whereas a lot of times there will be criminal charges filed, and then in order to recoup damages, there will be civil suits filed thereafter. So it was kind of flipped-flopped.

Macías: Andre Garcia, the main recruiter for the company, was sentenced to 20 years in federal prison. You were at the sentencing. Can you talk about what that was like and what the women said?

Bruno: So Andre Garcia was the first person to plead guilty in the federal case. The federal case was filed in the fall of 2019 and he pleaded guilty in December 2020. And there were a couple dozen of the victims were in court that day. It was a very emotional day, most of them cried during their testimony. They talked about the fallout of what happened after they filmed with Garcia. They talked about how callous he was after they went to him to ask for the videos to be removed and kind of his response. They talked about how he knew what he was doing, that it was not a mistake, it wasn't a one-time mistake, but this went on for years. And plenty of women, you know, pleaded with him to take down the videos and he did not. The women really have formed a sisterhood in the fact that they found each other and kind of sought justice when Garcia and the other men involved in GirlsDoPorn obviously did not think that anyone would listen to them or take them seriously and that they'd face any type of consequences for their conduct. 

Macías: Have the women received any restitution or other kinds of payment?

Bruno: In state court, they were awarded over $13 million in damages, and they have not seen that money yet. There is a bankruptcy restitution hearing with one of the companies affiliated with GirlsDoPorn that is scheduled for this week. And so that may be a way that they are able to secure damages that they have faced. There's also another civil case that was filed last year and that one is in federal court and that's actually against Pornhub and its owner, which is a Canadian company called MindGeek. In that case that accuses Pornhub of knowing that GirlsDoPorn was trafficking women, that its business operation was based on lies, and yet Pornhub still benefited financially in the form of, you know, receiving millions of dollars through this affiliate it had with the GirlsDoPorn website.

Macías: So what happens next in the case?

Bruno: There are a few more people who are scheduled to be sentenced in the federal human trafficking case. The first one up is a man named Teddy Gyi and he was also a videographer with GirlsDoPorn. So Teddy Gyi is going to be sentenced on July 2. And there's another woman named Valerie Moser and she is an administrative assistant in the office who also recruited women and would pick them up from the airport and drive them around and take them to get their nails and hair done. And she was kind of essential in making the woman feel comfortable and answering questions when they had them and lying to them and so she will also be sentenced in August. 

Macías: Thanks so much Bianca, I appreciate it.

Bruno: That was my conversation with reporter Martín Macías who is also a host for the podcast. Please visit courthousenews.com to see more of my reporting on this case and follow us on Twitter @CourthouseNews. We'll be back with more after a short break.

(Music Break)

Bruno: Next, we have a story out of the tech capital of the country, the San Francisco Bay Area. Apple faced a recent antitrust trial over what some consider its monopoly on how consumers download software technology. The case could have huge implications for the future of mobile technology. Here's my colleague Nick Iovino with the story.

iPhone Commercial: If you don't have an iPhone, you don't have the App Store. So you don't have the world's largest selection of apps.

Iovino: When Apple introduced its app store in 2008, it promised to open the door to a whole new world of possibilities in mobile technology. But 13 years later, some critics say Apple's tight control over its app store is harming competition and stifling innovation. That debate recently played out in a federal courtroom in Oakland, Calif. Epic Games, maker of the popular game Fortnite, is suing Apple for antitrust violations. It's a case with huge implications for the technology sector. The outcome will determine how tightly Apple can control what software its customers get to download. It could also shape the future of how mobile technology gets developed.

Florian Ederer: Other commentators have colorfully called this the first battle in the great tech antitrust war. This is almost now a civil war; it is that several of the tech firms going against each other. So what we've seen so far is antitrust challenges coming from the DOJ or the FTC, but we haven't seen quite so much of directly the different tech companies kind of going at each other.

Iovino: That's Yale University Economics Professor Florian Ederer. He's been closely watching the Epic vs. Apple antitrust suit. Ederer says this case could force Apple to change its business model. It could also have ripple effects on other tech companies like Google and Amazon that rely on tight control of their platforms to maximize profits. In May, U.S. District Judge Yvonne Gonzalez Rogers oversaw a three-week bench trial in Epic’s lawsuit against Apple. I caught up with Courthouse News reporter Maria Dinzeo, who covered the trial. She broke down how this business dispute first erupted between the two tech giants.

Dinzeo: So Epic Games in August of 2020 issued an update to the iOS version of Fortnite. And this update sort of surreptitiously installed a direct payment option within the iOS app, so it would allow people who are looking to purchase in-game items or in-game currency to pay Epic Games directly for that so it bypassed Apple's rules that everything has to go through the app store. And also that Apple will take a 30% cut of those in-app purchases.

Iovino: How did Apple respond to Epic sneaking in code to circumvent its payment system?

Dinzeo: That basically led Apple to kick Epic out of their app store. And actually, Epic Games did this with Google as well, leading to the same result. This spurred Epic to file a federal lawsuit.

Iovino: Epic filed suits against Apple and Google, but the Apple case is the first one to make it to trial. Before those suits were filed, Epic had already started grumbling about what it called anti-competitive behavior by the two largest smartphone operating system makers in the United States. Here's Epic CEO Tim Sweeney talking on CNBC in July last year.

Sweeney: Apple was locked down and crippled the echo system by imposing an absolute monopoly on the distribution of software and monetization of software, and they're preventing entire categories of businesses and applications from being developed in their ecosystem.

Iovino: In tech business lingo, that closed ecosystem is referred to as the walled garden. To get a better understanding of what that is, I reached out to David Olson, a Boston College law professor who specializes in antitrust law. 

Olson: Walled garden is just a metaphor, a term for a system, whether it's a software system or hardware or both, in which the manufacturer, the maker of the device and the software controls what goes on the device. And so you can only load things through the app store. There's only a limited number of software options that Apple is going to allow. Apple is going to control a lot how the iPhone works, and that's what's called a walled garden. 

Iovino: Apple CEO Tim Cook has forcefully denied that this walled garden structure gives his company monopoly power. He even went so far as to describe the app store ecosystem as a super competitive street brawl for market share. Here's Cook testifying before Congress in July last year.

Cook: We had fierce competition out the developer side and the customer side, which is essentially it's so competitive I would describe it as a street fight for market share in the smartphone business.

(Fighting Sounds)

Iovino: So which CEO is right? For a little background, I asked Maria to break down Epic's argument as to how this walled garden structure supposedly gives Apple monopoly power.

Dinzeo: Epic has this theory that Apple violated antitrust laws by having these really stringent requirements that they impose on developers who offer apps on iPhones and iPads that they have to go through the app store for everything. They also say that Apple has meticulously built this app store in a closed system. So, it's sort of designed to make it necessary for consumers to use Apple's products and services to get what they want. They are locked into this closed platform where they can only download apps from Apple. And each and every time they make a purchase in the app, Apple imposes a 30% tax essentially.

Iovino: Throughout the trial, Apple argued it has good reason to maintain tight control over how apps are distributed. It says that control is necessary to filter out malicious apps that could swindle users, hack phones, invade privacy or promote violence.

Dinzeo: They've made the argument that if Epic is allowed to do this if they can have their own payment system on the app store, that that's just going to sort of open the door to a lot of scams, it's going to be essentially the Wild West for them.

Iovino: Could a victory for Epic really usher in a Wild West era for iPhone apps? I asked Professor Ederer of Yale University about that.

Ederer: If Epic really outright wins on all of this, I think we're gonna see a little bit of a freefall. And we're gonna see a lot more of these lawsuits, we're gonna see probably a much freer, maybe the end of these walled gardens. We would probably see quite a flourishing of the apps but potentially with lower quality stuff, potentially lower security. But I say all of these are extremely hypothetical conjectures on my path.

Iovino: Ederer thinks it's highly unlikely the judge will give Epic everything at once and completely knock down the walled garden. According to Ederer, that scenario is unlikely because courts tend to be more conservative in big antitrust cases, and reluctant to force radical change on large businesses. But what would it take for Epic to actually win this long shot trial against a $2 trillion technology giant? Herb Hovenkamp, an antitrust law professor from the University of Pennsylvania, says it's all about showing that Apple has market power.

Hovenkamp: The only way Epic can win is if it can convince the court that Apple has significant market power. So, it is pushed hard for the claim that the relevant market is the group of people who already own an iPhone, and that you need to define the market with respect to them. 

Iovino: And that brings us to the central question of this case. Is Apple a monopolist? The answer depends on how you define the market. Maria broke down how both sides are trying to frame what the market is in this case.

Dinzeo: The market definition here is going to be really important. We're basically asking ourselves here or the judge is asking, is the market confined to just distributing apps on the iPhone? Or is the market devices on which video games can be played? Epic is saying that the relevant market here is iOS app distribution. And in that payment solutions, they're arguing that game consoles are not good substitutes for smartphones. But Apple is saying that the market that the judge should be considering right now is gain distribution, which has a variety of platforms. You know, they're saying like, look, we actually don't have that much market share to be considered a monopoly when it comes to game distribution because you can play Fortnite on not only a console but a PC. So, consumers have a lot of options.

Iovino: I asked Maria if the judge gave any hints on how she might rule. She said it was hard to pin down because the judge posed tough questions to both sides, especially when grilling Epic CEO Tim Sweeney and Apple CEO Tim Cook on the witness stand.

Dinzeo: She really had a lot of questions for both sides. She referred back to Tim Sweeney's testimony saying like he had made it clear that they would not be here if a side deal had been cut with Apple. So, she really questioned Epic Games ulterior motives for bringing this case. And she also really seemed quite skeptical of the arguments that Tim Cook was making that Apple offers all of these great features and in doing so they create this closed platform, right, where they're essentially making decisions for consumers as to what's best for them.

Iovino: The judge asked Tim Cook a lot of questions about Apple's 30% commission fee on app sales and whether that number is driven by market forces or plucked out of thin air.

Dinzeo: She noted that, you know, she doesn't believe that Apple is setting its commission as much as 30% based on competition, but that it's rather it's enacting this arbitrary 30%. And then also the fact that at least 39% of developers that had been surveyed had said that they were dissatisfied with how Apple was treating them. She was basically saying that, you know, they don't seem to be facing any kind of pressure of competition that would actually change the way they address the concerns of developers.

Iovino: So, the judge was skeptical of Apple's commission rates. But she also suggested it might be unfair for Epic to benefit from Apple's invention of its app store and operating system without paying some kind of price.

Dinzeo: She also did seem favorable to the idea that Apple is just trying to protect its intellectual property, and that Epic shouldn't be looking to use that intellectual property for free.

Iovino: I asked a few antitrust experts to predict how the judge might rule. Professor Olson of Boston College said he'll be surprised if Epic outright wins the case given that Apple has no control over other platforms where Fortnite can be downloaded and played.

Olson: My prediction is that Apple will win. I think that's more likely than not. I just think the market definition problem is pretty severe for Epic. If the market is defined as anything along the lines of all the things where Fortnite is sold, Apple just doesn't have the market power. If Apple doesn't have the market power, the case stops there.

Iovino: Professor Ederer had a more optimistic take on Epic’s chances. While taking on Apple appeared an insurmountable challenge at the start, he thinks Epic may have tipped the scale by poking holes in Apple's argument that it needs tight control over apps to serve its customers.

Ederer: Most of the commentators heading into this trial said that look, this is going to be a really, really difficult lawsuit to win for Epic. And I'd say that the way that the case has developed, has at least shifted the odds somewhat in favor of Epic. It's still an uphill battle, but it's not quite sort of like the Mount Everest claim that they had to do at the very, very beginning. OK, it feels more like a somewhat you know, more manageable Mount McKinley/Denali tech claim now.

Iovino: Professor Hovenkamp can't predict an entirely different scenario, he thinks there's still a high probability that both sides could settle the case before the judge issues her ruling.

Hovenkamp: I still think the most likely outcome of this case is that it's going to settle. People always say we’ll never settle until they do. I think there's a lot of pressure on Apple to give some kind of settlement and also a lot of pressure on Epic to accept a relatively narrow settlement that gives Epic most of what it wants without actually opening the platform wide to all kinds of competition.

Iovino: If the case were settled, it would set no legal precedent and app developers clamoring to make Apple changes business practices would have to start from scratch with a new lawsuit. At the end of the trial, Judge Gonzalez Rogers said she has 4,500 pages of testimony to sift through before making her decision.

Dinzeo: She said not to expect a ruling for some months, and I wouldn't be surprised if it was you know, much later in this year, perhaps in the fall.

Iovino: Whatever the judge decides, antitrust experts agree on one thing: her ruling is almost guaranteed to be appealed to the Ninth Circuit.

(Music Break)

Bruno: Thanks for that report, Nick. Finally, we turn to Colorado, where you'll hear from my Sidebar colleague Nina Pullano about a chubby wild bird the size of a chicken called the Gunnison sage grouse. This bird has become the unlikely subject of lawsuits claiming the federal agency tasked with protecting its home has sold out and leased the land for human development.

(Music Break)

Pullano: Okay, listen to this. 

(Gunnison Sage Grouse Call)

Pullano: That is the call of the Gunnison sage grouse. And if you can picture this bird, it weighs about two to five pounds.

Amanda Pampuro: Which is about the size of your average grocery store chicken. They have dark brown feathers and their face is dark, their beak is dark. They have a plume of feathers with these dark brown and light stripes. And during mating season, the males just stick these out like some kind of a dapper peacock. During spring the males stand up on these territories called leks. And they strut around and they puff out their chest and they have these yellow air sacs that just inflate and make these popping sounds like bubbles. And that attracts the females.

Pullano: Reporter Amanda Pampuro, who just gave us that excellent description of the Gunnison sage grouse, first learned about the bird when she noticed it kept showing up in court filings in Colorado. It's been the subject of at least seven lawsuits in the state over the past six years.

Pampuro: So, the most recent two are about the Bureau of Land Management and leasing the bird's habitat out to cattle grazing. And so the birds are really emblematic of this tension between human development and environmental preservation. And I wanted to know more about the bird. That made me want to know where does it live? What does it eat?

Pullano: To learn more, Amanda went out into the field, quite literally, with a group of scientists and park rangers that are working to conserve the birds’ habitat. She learned that even though this bird was first discovered in the 1980s, it's only been considered a unique species since 2000. But long before that, troubles in its habitat had already begun.

Pampuro: The problem is over the last century, roads and erosion have really disrupted the water flow into the bottoms of valleys. Instead of collecting into the ground, rain and melting snow drain out of the water table. And if you think about your high school textbook illustrations of the pioneers crossing the landscape in covered wagons, it's tough going even today in a Super Duty Ford. So, settlers were looking for the easiest roads through the dry creek beds and wet meadows, the heavy wagons with their iron-bound wheels, they dug into these places, killed off vegetation, created rocks and just drained the water out of ground. And when the ground got dry, sagebrush moved in and there were no more wet meadow habitats.

Pullano: Because of its loss of habitat, the range where the Gunnison sage grouse lives has shrunk significantly. It used to span all across Arizona, New Mexico, Utah and Colorado. But these days it's just in the western corner of Colorado and a little bit of Utah. A group including conservation biologists are trying to restore the wet meadow habitats and in turn protect the Gunnison sage grouse. 

(Music Break)

Pullano: Amanda drove 200 miles southwest of Denver to see firsthand how that happens.

Pampuro: Beautiful winding mountain road through the San Isabel National Forest down to 285 South, looks like postcard towns, evergreens.

Pullano: She met a group of biologists, hydrologists, park rangers, from state and federal agencies.

Pampuro: There's a lot of people interested in this issue. So, we piled into trucks, we drove up to Route 42, pulled off onto these rough dirt roads. 

(Sound of Ground Crunching)

Pampuro: When you look around the hills with sagebrush, it's really orange and dusty. And when we got to the bottom of these valleys, they were full of rich dark soil, which is one of the signs that it used to be a meadow.

Pullano: Out in the brush, Amanda saw the techniques used by this team of folks all gathered to protect the Gunnison sage grouse’s habitat: the wet meadow. And they do that in a few different ways.

Pampuro: So, in these places where the wet meadow dried out, they're simply trying to restore the lands’ ability to retain water, and this looks like dams. They call it a one-rock dam because it's one layer of rocks built across a dried-out channel. And all this does is it slows down the flow of water, so it seeps throughout the dehydrated water table instead of just rushing through or sinking out. In other places, they build Zuni bowls, which are named after a Pueblo tribe that pioneered these designs hundreds of years ago. And so the Zuni bowl is a rock-lined bowl that they build around these areas that are really eroded and steep, and it turns this almost drain into a pool where the water collects, and then again slowly seeps throughout the ground instead of running out of the ecosystem.

Pullano: These efforts to restore water are also helping other living things in the region.

Pampuro: You see wetland meadow plants are popping up. So, irises, sages, cottonwood, willows. You see native beetles and insects returning, you know, nature's healing,

Pullano: It's a bit trickier to track the population of the Gunnison sage grouse.

Pampuro: Their population always fluctuates every year, usually coinciding with drought. So, in dry years, the population drops. In wet years it surges. Also, they can't physically count every single bird out in the sagebrush habitat. So, what they do is they wait for the males to come out on leks.

Pullano: That's when the males become the dapper peacocks that Amanda described earlier. 

Pampuro: They count as many unique males on leks as they can, and then they use a formula to estimate the broad population.

Pullano: The counts are indeed fluctuating. In 2015, the estimated population had a high of 5,500 birds, but the number was less than half that in 2019. This year, it was doing better, up to more than 3,500.

Pampuro: It's really important that during these good years where there's good rainfall, that more chicks survive because that helps build resiliency into the population for the prolonged drought and other unpredictable weather patterns that we're expecting. 

Pullano: Protecting the water supply of the wet meadows has rippling effects for a lot of other species, including us.

Pampuro: Besides helping young Gunnison sage grouse, a restored wet meadow, according to the state, provides important food and cover for insects, pollinators, neotropical migratory birds, mule deer and elk. They are also providing forage for cattle and a little bit of water security for humans. Who doesn't love that.

Bruno: Thanks Nina for your report. That's our show. If you've enjoyed listening to Sidebar, please consider leaving us a review on Spotify or wherever you listen to podcasts. And don't forget to follow our Twitter account @SidebarCNS. Thanks for listening.

(Outro Music)