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EFF Urges Judge to Reject Dangerous New Copyright Troll Strategy

PRESS RELEASE
March 16, 2011
Adult Film Company Uses 'Reverse Class Action' Lawsuit to Ensnare More Defendants

San Francisco - The Electronic Frontier Foundation (EFF) has asked an Illinois judge to quash subpoenas issued in a "reverse class action" lawsuit accusing thousands of people of illegally downloading pornography, and urged the court to dismiss the case. In a friend of the court brief filed Tuesday, EFF argued that the plaintiff's "class action" strategy is an improper attempt to sidestep the rights of the defendants.

EFF has been involved in a number of copyright troll cases where content owners and lawyers team up to try to obtain the identities of thousands of anonymous alleged file sharers at once in order to extract settlements from them. In response, judges across the country have been cracking down on such abusive strategies. Thousands of unnamed "John Does" targeted in lawsuits filed in California, Washington D.C., Texas, and West Virginia have been severed, effectively dismissing over 40,000 defendants. These rulings may have a significant impact on this misguided business model, which relies on being able to sue thousands of Does at once with a minimum of administrative expense.

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 thousand 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."

"When adult film companies file predatory lawsuits, there is the added embarrassment associated with pornography, which can convince people to quickly pay what's demanded of them even if they have legitimate defenses," said EFF Intellectual Property Director Corynne McSherry. "We hope the court takes immediate steps to restore fairness to this process."

Charles Lee Mudd Jr. and Mark Petrolis of Mudd Law Offices assisted EFF with the filing of this brief.

For the full amicus brief:

https://www.eff.org/files/filenode/openmind_v_does/openmind-amicus-filed.pdf

For more on copyright trolls:

https://www.eff.org/issues/copyright-trolls

Contacts:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz@eff.org

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