Deciding a case we wrote about here a year ago, a federal appeals court today has for the first time has put the kibosh on a shakedown scheme aimed at pornography downloaders and practiced by AF Holdings, an arm of notorious copyright troll Prenda Law.
Circuit Judge David Tatel, writing for United States Court of Appeals for the District of Columbia Circuit, called the lawsuit "a quintessential example of Prenda Law's modus operandi" in reversing a lower court ruling that would have forced a half-dozen ISPs to identify account holders associated with 1,058 IP addresses.
From an Electronic Frontier Foundation press release:
The case is one of hundreds around the country that follow the same pattern. A copyright troll looks for IP addresses that may have been used to download films (often adult films) via BitTorrent, files a single lawsuit against thousands of "John Doe" defendants based on those IP addresses, then seeks to subpoena the ISPs for the contact information of the account holders associated with those IP addresses. The troll then uses that information to contact the account holders and threatens expensive litigation if they do not settle promptly. Faced with the prospect of hiring an attorney and litigating the issue, often in a distant court, most subscribers-including those who may have done nothing wrong-will choose to settle rather than fight.
"Once a troll gets the names it's looking for, then it already has what it needs to put its shakedown scheme in motion," EFF Staff Attorney Mitch Stoltz said. "For the defendants, it will come down to risking being named in a lawsuit over a pornographic movie, or settling for less than the cost of hiring an attorney. As a matter of law and basic fairness, a copyright plaintiff needs to show that its case is on solid ground before putting hundreds of Internet users into that kind of bind."
The appeals court decision makes clear that AF Holdings is on anything but solid ground.
According to the decision, AF Holdings has never actually brought a copyright case to trial, yet is reported to have "earned" $15 million over three years using the scheme. The court based its reversal, however, on the troll's inability to demonstrate that more than a handful of 1,058 individuals it sought to identify even lived in the District of Columbia.
From the opinion: "Cox, AT&T, and Bright House each stated that they had no subscribers at all in the District of Columbia; indeed, they do not even offer service here. ... Here, we think it quite obvious that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district."
The court also ruled that seeking the identities as part of a single lawsuit was impermissible because there was no reason to believe that the targets acted in concert. "... Given its decision to instead name and seek discovery regarding a vast number of defendants who downloaded the film weeks and even months apart-defendants who could not possibly remain joined in this litigation-one can easily infer that its purpose was to attain information that was not, and could not be, relevant to this particular suit. Such use of the discovery procedures is prohibited."
EFF calls the decision "a crushing blow for copyright trolls."
Not to mention a great relief to about 1,000 porn downloaders.
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