EFF Files Brief on Behalf of Porn BitTorrent Defendants

Jan 31, 2012 10:00 AM PST

SAN FRANCISCO — The Electronic Frontier Foundation, in defense of those targeted in a porn BitTorrent case, has asked a federal judge in Washington to protect the identities of individuals named in the suit waged by Hard Drive Productions.

Some of the 1,495 defendants alleged to have downloaded Hard Drive's "Amateur Allure — MaeLynn" moved to quash subpoenas aimed at revealing their identity. Many filed those motions under seal to protect their anonymity until the motions are decided.

But last month, a federal judge issued a Catch-22 order, requiring these individuals to reveal their identities before their motions — which were made to protect their identities — could proceed.

The EFF, in a friend of the court brief filed Monday, said that this requirement could induce defendants to settle their lawsuits in order to avoid the embarrassment or expense, instead of getting to the merits of the case.

"These subpoenas need to be considered in the context in which this case was brought," EFF Staff Attorney Mitch Stoltz said. "The plaintiffs here hope to take advantage of the stigma associated with pornography — as well as the threat of an expensive court battle — to induce people to settle no matter what their defenses might be.

"If defendants can't fight the exposure of their identities without exposing their identities, then the plaintiffs have already won."

The EFF said that the case is one of a growing number of mass copyright lawsuits that do not appear to be filed with any intention of litigating them.

Instead, the EFF said, once identities of suspected infringers are obtained from ISPs, the plaintiffs send settlement letters offering to make the lawsuit go away for a few thousand dollars.

"A ruling on whether a film company may obtain identities of anonymous Internet users may be the last chance for defendants to be heard by the court," the EFF said.

EFF attorneys said that the brief filed Monday explains both the speech implications of the ruling and the importance of the court rules that protect defendants, given the numerous ways these mass lawsuits violate due process.

"All that the plaintiffs need here to pursue their settlement shake-down scheme is the identity of the anonymous defendants," EFF Intellectual Property Director Corynne McSherry said. "These defendants have a 1st Amendment right to argue for their anonymity without the court forcing them to moot that argument from the start.

"We're asking for these motions to quash to go forward without requiring them to be unsealed, and we're also asking the court to throw this case out given the basic due process flaws."

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