EFF Asks Court To Preserve Web Users' Anonymity In Copyright Case

by Wendy Davis, Feb 2, 2012, 6:10 PM

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In one of the more perplexing recent judicial decisions, a federal magistrate in Washington, D.C. ruled in December that Web users who are accused of infringing copyright by downloading porn movies, and who want to fight for their anonymity, can only do so by first placing their names in the public record.

This week, the digital rights group Electronic Frontier Foundation filed papers pointing out the absurdity of the order. Requiring defendants to reveal their names “by placing their motions to quash on the public docket would effectively moot their arguments for anonymity,” the group argues in a friend-of-the-court brief.

The EFF is asking the court to stay the order pending reconsideration. The lawsuit is one of several “reverse class-action” lawsuits filed by the porn company Hard Drive Productions. The company typically compiles hundreds of IP addresses of suspected file-sharers, and then seeks court orders requiring Internet service providers to identify the subscribers.

In the Washington, D.C. matter, Hard Drive sued around 1,400 anonymous Web users in September, and then sought to subpoena the users' names from their Internet service providers. U.S. District Court Judge John Bates ruled in November that anyone who objected could file an anonymous motion to quash.

But U.S. Magistrate John Facciola subsequently decided that anonymous motions opposing the subpoenas would not be appropriate. Among other reasons, he said that “individuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information.”

The EFF points out in its papers that Facciola's reasoning doesn't take into account “the speech concerns inherent in depriving [people] their anonymity.”

The group adds: “Defendants have a First Amendment right to speak anonymously that should not be forfeited as a prerequisite to being heard in court. And, at the very least, it should not be forfeited without careful consideration of the important constitutional consequences of doing so.”

The EFF also points out that the lawsuit, like other reverse class-actions, appears to have been filed by attorneys who hope to squeeze four-figure settlements out of the defendants. “It seems that in these cases the plaintiffs’ lawyers hope to take advantage of the threat of an award of statutory damages and attorneys’ fees, the ignorance of those sued about their potential defenses, and the burden of litigating ... to induce the anonymous defendants into settling the case for a payment of roughly $1,500 to $2,500 dollars.” 

For its part, Hard Drive productions says that the EFF shouldn't be allowed to weigh in on the matter. The company accuses the 22-year-old EFF -- which has prevailed in court in numerous precedent-setting cases -- of a “history of advocating lawlessness” on the Web. “The court should reject the idea that an interest group like the EFF can help the Court by providing any unique insight or perspective,” Hard Drive argues.

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