YNOT – The Electronic Frontier Foundation has asked federal judges in Texas and West Virginia to block the unmasking of accused file sharers in several court actions the foundation calls “predatory copyright troll lawsuits.”
Filed by two different adult entertainment companies, all the actions allege massive copyright infringement by users of peer-to-peer networks and tube sites. EFF believes the owners of the infringed adult movies improperly lumped hundreds of defendants together, virtually denying all of them fair consideration of the accusations against them as individuals. In addition, according to EFF, potential harm to their reputations because of the type of material allegedly pirated may encourage some defendants to settle the cases against them whether or not the charges have merit.
“Consistent with a recent spike in similar ‘copyright troll’ lawsuits, the motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims,” the foundation noted in a prepared statement.
A foundation attorney said the lawsuits very well may violate due-process rights.
“Suing hundreds or even thousands of people together en masse, in states in which the vast majority of the accused downloaders appear to have no connection, amounts to a deliberate end-run around their due process rights,” EFF Senior Staff Attorney Matt Zimmerman said. “The suits seem designed to ensure that few, if any, defendants will fight back, given the risk of shame from being publicly identified.”
In the Texas case, Mick Haig Productions v. Does, EFF and Public Citizen are acting as counsel for the anonymous defendants after the court in the Northern District of Texas requested the organizations’ participation. In a brief filed Nov. 24, EFF and Public Citizen opposed motions seeking discovery of the Does’ identities, arguing that almost all of the defendants appear to be outside the court’s jurisdiction. Additionally, the case improperly joins hundreds of Does in the same case, jeopardizing their rights to defend themselves individually. Moreover, the lawsuit flouts First Amendment protections mandating that a plaintiff demonstrate its case is viable and that defendants be given notice and opportunity to oppose efforts to reveal their identities.
“There is a real potential for embarrassment, or worse, if a pornographer mistakenly identifies an anonymous individual as having infringed its copyright by downloading one of its movies,” said Paul Levy, an attorney with Public Citizen Litigation Group. “To ensure justice for the individuals being accused, filmmakers claiming copyright infringement should be required to meet the same standards as defamation plaintiffs and others claiming the right to sue for anonymous speech online.”
EFF also filed an amicus brief in a series of seven similar cases filed by Third World Media in the district court for the Northern District of West Virginia. In those cases, Time Warner Cable has moved to quash subpoenas seeking the identities of accused filed sharers, also arguing that the plaintiff film companies are attempting to abuse the discovery process. EFF’s amicus brief — filed Nov. 22 in support of Time Warner — argues that the plaintiffs should re-file their actions against each defendant individually and bring suit in courts that appear likely to be able to exercise personal jurisdiction properly.
“Some producers of adult content have apparently come to the conclusion that filing shoddy mass lawsuits under the assumption that the defendants will be too intimidated to fight back is a good business strategy,” EFF’s Zimmerman said. “It is our hope that courts will quickly see through these tactics and ensure that the right to a fair process is ensured for every defendant.”
Attorney Marc J. Randazza, who has pursued numerous successful content piracy suits on behalf of clients including gay adult studio Corbin Fisher, said although he agrees in part with Zimmerman and Levy, he believes part of their theory is misguided.
“I am not against suing end-users — I just think it needs to be done right,” Randazza told YNOT.com. “I deeply respect EFF’s attorneys, and Paul Levy is one of my heroes. I disagree with much of their position, but not all of it.
“I firmly believe that the adult industry needs to do something about online piracy,” he continued. “I do not disagree with suing individuals over this, since one individual can then become a node to distribute the work to thousands of others, but I believe the adult industry needs to make sure that its lawyers don’t behave unethically when they do [sue].”
Randazza said jurisdiction in any case must be scrutinized carefully, because in some venues lack of jurisdiction is grounds for dismissal, at substantial financial cost to the plaintiff. Cases in which neither the plaintiff nor the defendant(s) have significant connections to the venue stand in jeopardy of being dismissed for lack of jurisdiction. On that point EFF and Public Citizen may have a valid argument, depending upon the court.
“Is there a potential downside for companies that sue in a jurisdiction that is convenient for the lawyer, but neither the plaintiff nor the defendant is there?” Randazza asked. “Yes, especially in the 7th Circuit, where there are strict prevailing party attorneys fees. If someone fights jurisdiction there, the adult entertainment company that got sold a bill of goods might wind up having to pay the defendant’s attorneys fees — and they can’t just drop the case to get out of it.”
Despite niggling doubts about jurisdictional issues, Randazza said he partially disagrees and partially agrees with the “shaming” argument EFF and Public Citizen have put forth.
“I understand EFF’s position on shaming, and I somewhat agree,” Randazza told YNOT. “There is always an element of shame when you steal something, and the adult entertainment business has always had a little fun with that. For example, walk into any porn store, and you’ll likely find Polaroids of people they caught shoplifting, with a description of what they were stealing. And nobody feels bad for [the thieves]. We all stop and laugh at them; at the dejected looks on their faces as they are holding up the copy of ‘morbidly obese transsexual midgets with corn cobs up their asses’ that they tried to steal. So, I don’t think the porn companies have any duty to be careful about shaming anyone.
“I also think there is nothing shameful about any content — gay, straight, tranny, midget or otherwise,” he added. “So, if a defendant is worried about their content selection choices becoming public, well, they should have thought of that before they stole it.
“On the other hand, I think lawyers who use that as the point of their sword should be run out of the industry and should have their asses kicked,” Randazza said. “When they do that, they send the message that there is something shameful about our clients’ First Amendment protected content – which there isn’t. Furthermore, they are setting their clients up as easy targets in an obscenity case. If your lawyer doesn’t represent you ethically, think of what will happen later when your lawyer’s greed conflicts with your best interests.”
The motion to quash filed in Texas is here (PDF).
The amicus brief filed in West Virginia is here (PDF).
