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EFF exposes porn industry's latest copyright screw job

Electronic Frontier Foundation decries 'reverse class action' gambit

By Paul McNamara on Wed, 03/16/11 - 1:27pm.

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What would copyright-infringing porn downloaders - and those wrongly accused of being such - do without the support of the Electronic Frontier Foundation?

I'll tell you what: They'd get their pants sued off ... and not in a manner that anyone but a copyright troll would consider fair or just.

The EFF has been at the forefront of legal cases in a number of states that have seen judges turn back attempts by porn industry lawyers to force ISPs to identify thousands of "John Does" based upon little more than an list of IP addresses, many of which correlate to users who do not even reside in the states where the suits are filed. In this latest twist on what has proven to be an ineffective tactic, a porn industry lawyer is attempting in Illinois what the EFF calls a "reverse class action" lawsuit.

From the EFF press release:

In this case, OpenMind Solutions v. Does, the plaintiff has taken a new approach: calling its complaint a "class action" lawsuit against the alleged infringers.  Normally a class action is used by a group of plaintiffs with similar complaints of a single defendant -- not a single plaintiff targeting thousands of defendants with no attorney in place to defend the rights of the accused.  OpenMind then asked the court for permission to issue subpoenas seeking identifying information for the Does, which was granted without the opportunity for anyone to speak on the unknown defendants' behalf.

"There is a short window here, before the defendants' identities are disclosed, in which the court can ensure that these individuals are treated fairly and justly," said EFF Senior Staff Attorney Matt Zimmerman.  "The class action process was never intended to be used this way. We're asking the court to call a halt to the gamesmanship from OpenMind Solutions."

I am not a lawyer (you've guessed that already) but the strategy strikes me as akin to conducting a traffic court where all of the day's alleged speeders are herded into a group and the group is offered but a single collective opportunity to argue its innocence.

Efficient it would be, but scarcely justice.

Now imagine that instead of speeding the members of "the class" stood accused of infringing upon copyrights held by a producer of adult entertainment.

How many members of the group - the innocent as well as the guilty -- do you figure would chose to pay whatever "settlement" the porn purveyor was asking rather than show their faces in court? It's that desire to avoid public embarrassment that constitutes the heart of this sleazy legal strategy.

There is a lot more to the EFF's legal objections in this latest case than avoiding humiliation for both the wrongly accused and actual copyright infringers. Legal eagles can read the EFF's amicus brief here (.pdf).

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