April 26, 2012 | By corynne mcsherry

ISPs Ask Judge To Quash Subpoena In Troll Case -- Or Let Them Appeal


At this point, EFF readers are doubtless well-familiar with the rise of -- and battles against -- copyright trollsTechdirt is reporting today about a relatively new copyright troll tactic -- suing only Does that are unfortunate enough to be subscribers of ISPs that don't resist mass subpoenas.  So we thought it was time to take note again of the ISPs that are challenging these outrageous lawsuits -- and, often, winning.

As it happens, there is an important hearing in one of these cases tomorrow, in Washington D.C., and EFF Senior Staff Technologist Seth Schoen will be a witness.  In this case, porn producer AF Holdings, represented by the Prenda Law Firm, has sued more than 1000 Does in a single lawsuit, based on their purported IP addresses, and obtained an order allowing it to issue subpoenas to various ISPs demanding the Does' identifying information.  

Several of the ISPs that were subpoenaed –- including Cox, AT&T, and Verizon –- moved to quash.  EFF, along with the American Civil Liberties Union Foundation and the ACLU of the Nation's Capitol, filed an amicus brief in support.  As these briefs explain, there's no reason to suppose these Does have any relationship to each other, nor that they are actually located within the jurisdiction where they are being sued. AF Holdings argues that the it is allowed to obtain the identities of the ISPs' customers in D.C. anyway because they might reside in the District or the alleged infringement may have occurred there. But the ISPs told the court that it was easy to discover that only 20 of the IP addresses were likely associated with Washington, D.C.  

This is not the only such motion ISPs have filed, but it stands out for two reasons.  First, the case is before Judge Beryl Howell, whose 2011 decision authorizing discovery in an earlier mass copyright case has been widely cited by copyright trolls around the country.  Since that ruling, however, the due process flaws in these cases, and the burden they are placing on the Does and the courts, not to mention ISPs, have become more and more clear.  This motion provides Judge Howell with an opportunity to consider these developments, taking into account evidence and testimony provided by the ISPs and amici. 

Second, if Judge Howell denies the motion, the ISPs have asked the Judge Howell to allow them to file an immediate appeal. If so, it will be the first time since this wave of troll litigation began that an appellate court has had an opportunity to weigh in on the due process problems inherent in these cases.  Given the seriousness of those problems, and the massive burden these cases are putting on the judicial system, individual Does, and ISPs, it is long past time for a higher court to get involved and help end this shakedown scheme for good.



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