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EFF urges appeals court to stop porn-copyright ‘shakedown’

Courts must keep the heat on these copyright trolls

By Paul McNamara on Wed, 05/15/13 - 11:29am.

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The Electronic Frontier Foundation yesterday filed a brief urging the U.S. District Court of Appeals for the District of Columbia Circuit "to stop a copyright troll's shakedown scheme in a case linked to the notorious Prenda Law firm."

This comes in the wake of last week's decision by a federal judge in California to level sanctions totaling $81,000 against Prenda and refer the matter to criminal prosecutors.  

While that ruling was heartening, it's important that courts nationwide continue to act against these schemes now, rather than wait for a criminal investigation and potential prosecution to deter the practice. ISPs also play a critical role here in that they must continue to resist becoming unwilling partners in this sleazy undertaking. The D.C. case is but one example.

From an EFF press release:

The plaintiff in this case, AF Holdings, is seeking the identity of more than 1,000 Internet users that it claims are linked to the illegal downloading of a copyrighted pornographic film.  Over the protest of the Internet service providers who received subpoenas for those identities, a lower court approved the disclosure of the names.  The ISPs appealed, and today EFF filed a brief in support of that appeal.  EFF is asking the U.S. District Court of Appeals for the District of Columbia Circuit to help keep the legal process fair and balanced by requiring AF Holdings to simply show that it has a good faith basis for going after these defendants.

"We're glad that judges are catching on to this abuse of the court system," said EFF Intellectual Property Director Corynne McSherry.  "But while the legal system tries to find answers about Prenda Law, AF Holdings, and other copyright trolls, it's important to remember that there are real people still being victimized by these unfair lawsuits in the meantime.  We hope the appellate court will recognize that copyright owners have to follow the same rules as everyone else."

The brief that EFF filed with the court lays out a number of ways in which AF Holdings has failed to meet that standard and in which the district court failed to hold them accountable.

The District Court allowed AF Holdings to subpoena the ISP records before any cases had been filed against the alleged copyright infringers because AF Holdings argued that such "expedited discovery" was the only way it could determine who among its targets lived within the court's jurisdiction. The court erred on that point, according to EFF, because the law says "plaintiff need" alone is not justification for expedited discovery.

Moreover - and central to the issue here - such erroneous granting of expedited discovery is what would allow a copyright troll to harvest the identities of hundreds or thousands of people, all of whom could expect to be shaken down with threatening letters irrespective of where they live.

In addition, argues the EFF, the plaintiff in the D.C. had an easy and inexpensive alternative.


"Geolocation services are available for a small fee, and plaintiff could have used such services to satisfy its duty to establish a good faith belief that its chosen defendants could be sued in this district. For example, Nuestar IP Intelligence (formerly called Quova) provides an on-demand geolocation service for $8 per 1,000 addresses. This service was audited independently by PriceWaterhouseCoopers in 2011 and found to be between 95.5 and 96.1 percent accurate."

In other words, had AF Holdings gone this route instead of subpoenaing ISPs it could have learned that all but a handful of its targets live outside the court's jurisdiction.

Of course, it didn't want to know that because that would have left only a handful of potential defendants to shake down.

There are more legal issues undermining this embarrassment-based "business model," so if you're into reading legal briefs this one is worth a look.

(Update: Looks as though the wife of one of the Prenda lawyers may have gotten a little too candid about the firm's methods and motivations in a post on Facebook. TechDirt has the details.)