EFF Blasted for Move Into Gay Porn Piracy Suit

Jun 19, 2012 11:00 AM PST

SAN FRANCISCO — The Electronic Frontier Foundation has taken sides in a porn piracy case, filing a friend-of-the-court brief for defendants who allegedly traded the gay porn video "Corbin Fisher's Down on the Farm."

EFF's amicus brief in the porn BitTorrent case, which pitted the word of one roommate against another over allegedly downloading the video, is one in a number of moves by the 22-year-old organization that has made adult industry attorneys scratching their foreheads.

In a post on its website, the EFF said the "Corbin Fisher's Down on the Farm" piracy case is about "copyright trolls attempt[ing] to game the legal process, using improper claims and procedures to pressure alleged copyright infringers into settling lawsuits against them even where they have legitimate defenses."

EFF postulated that if Corbin Fisher is successful in the case, Wi-Fi providers could be held responsible for users' behavior and public access to the Internet would be sharply reduced because of liability fears.

One adult industry attorney, Gill Sperlein, said he's outraged by the EFF's take on the online piracy problem beset on entertainment companies that has amounted to millions, if not billions, in lost revenue.

"It concerns me that the EFF, which used to be a really great organization, now unabashedly encourages piracy," adult industry attorney Gill Sperlein told XBIZ. "The use of inflammatory statements on their website and their consistent reference to copyright trolls seems more about getting press and raising donations than about protecting privacy rights. 

"Ironically, by encouraging individuals to engage in illegal behavior, they are hurting those individuals — to helping them," said Sperlein, who has filed cases on behalf of other adult studios suing piracy defendants.  

But Mitch Stoltz, a staff attorney at the EFF who worked on the amicus brief, said that Sperlein's claims that the San Francisco-based donor-supported organization supports piracy are not accurate.

"I'm not surprised that he's unhappy that we are participating in the case," Stoltz told XBIZ. "Obviously, the idea that we are 'unabashedly encouraging piracy' is ridiculous. What we are encouraging is respect for well-established law."

In the amicus brief, the EFF urged a federal judge to reject Corbin Fisher's copyright infringement suit, honing in on its contention that a Wi-Fi provider isn't responsible for purported copyright infringement of another user.

In the original suit filed at U.S. District Court in New York, Corbin Fisher charged that defendants Cary Tabora and Schulyer Whetstone, both roommates and named in another now-dismissed porn BitTorrent piracy suit involving some 840 infringements, were responsible for infringement, or at least one of them is.

Corbin Fisher said that Tabora spoke with its attorneys and admitted that it was Whetstone who was the party who illegally and distributed the movie.

"In an attempt to divert liability from himself, Tabora expressly stated that he had full knowledge that Whetstone regularly used Tabora's Internet connection for the criminal purpose of pirating copyrighted content, yet Tabora's continued to permit Whetstone to use the Internet connection for the purpose," the original suit said.

"In fact, Tabora stated emphatically, 'I was negligent' in allowing Whetstone to use his Internet connection to illegally pirate content, and that he was aware that it would eventually cause legal problems for him," the suit said.

Stoltz said EFF's motives behind filing an amicus brief in the case is clear — that it supports and contends that users shouldn't have to police their Internet connections.

"We got involved in this particular case because the law is clear that Internet subscribers have no legal responsibility to be private copyright police, monitoring their connections to make sure no one uses them to infringe copyrights," he said. "In fact, U.S. law protects Internet providers and subscribers from liability for the actions of others.

"The plaintiff's legal theory is, in a word, absurd, and Internet users shouldn't be pressured into paying settlements based on silly legal theories or the threat of being falsely identified as porn downloaders."

The ability to use "copyright negligence" as a legal theory to civilly charge individuals in Internet piracy cases is bothersome to Stolz, who characterized the practice as a money grab.

"Mass [John] Doe copyright lawsuits that seek to get people to pay regardless of their actual legal liability are a tax on lawful Internet users, and this frivolous 'copyright negligence' theory would make things much worse."

But Sperlein said that it's nonsense to believe copyright holders don't have a right to protect the distribution of their property with all the legal tools and means they have.

"Litigation against pirates who steal movies using BitTorrent networks is not going to stop," Sperlein said.  "It is simply going to become more expensive, and when individuals get caught it’s going to cost them a lot more to settle the claims with copyright holders legitimately seeking to protect their content."

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