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EFF Asks Judges to Protect Identities in Porn-Downloading Lawsuits

PRESS RELEASE
November 29, 2010
Risk of Embarrassment Pressures Defendants to Settle, Regardless of Merit

San Francisco - The Electronic Frontier Foundation (EFF) has asked judges in Texas and West Virginia to block requests to unmask accused file sharers in several predatory copyright troll lawsuits involving the alleged illegal downloading of pornography.

The cases were filed by two different companies and involve different copyrighted adult material. However, the tactics are the same. In both cases, the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lump hundreds of defendants together regardless of where the IP addresses indicate the defendants live. Consistent with a recent spike in similar "copyright troll" lawsuits, the motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.

"Suing hundreds or even thousands of people together en masse, in states in which the vast majority of the accused downloaders appear to have no connection, amounts to a deliberate end-run around their due process rights," said EFF Senior Staff Attorney Matt Zimmerman. "The suits seem designed to ensure that few, if any, defendants will fight back, given the risk of shame from being publicly identified."

In the Texas case, Mick Haig Productions v. Does, EFF and Public Citizen are acting as counsel for the anonymous defendants after the court in the Northern District of Texas requested us to do so. In a brief filed Wednesday, EFF and Public Citizen opposed discovery into the Does' identities, arguing that almost all of the defendants appear to be outside the court's jurisdiction. Additionally, the case improperly joins hundreds of Does in the same case, jeopardizing their rights to individually defend themselves. Moreover, the lawsuit also flouts First Amendment protections mandating that a plaintiff demonstrate its case is viable and that defendants be given notice and opportunity to oppose efforts to reveal their identities.

"There is a real potential for embarrassment, or worse, if a pornographer mistakenly identifies an anonymous individual as having infringed its copyright by downloading one of its movies," said Paul Levy, attorney with Public Citizen Litigation Group. "To ensure justice for the individuals being accused, filmmakers claiming copyright infringement should be required to meet the same standards as defamation plaintiffs and others claiming the right to sue for anonymous speech online."

Also last week, EFF filed an amicus brief in a series of seven similar cases in the district court for the Northern District of West Virginia. In those cases, Time Warner Cable has moved to quash subpoenas seeking the identities of accused filed sharers, also arguing that the plaintiff film companies are attempting to abuse the discovery process. EFF's amicus brief -- filed Tuesday in support of Time Warner Cable -- argues that the plaintiffs should re-file their actions against each defendant individually and bring suit in courts that appear likely to be able to properly exercise personal jurisdiction.

"Some producers of adult content have apparently come to the conclusion that filing shoddy mass lawsuits under the assumption that the defendants will be too intimidated to fight back is a good business strategy," said Zimmerman. "It is our hope that courts will quickly see through these tactics and ensure that the right to a fair process is ensured for every defendant."

For the motion to quash filed in Texas:
https://www.eff.org/files/filenode/uscg/opposition-mickhaig.pdf

For the amicus brief filed in West Virginia:
https://www.eff.org/files/filenode/uscg/thirdworldmediavdoesamicus.PDF

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contact:

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

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