Corbin Fisher Files Motion to Oppose EFF Filing in Piracy Case

Jun 20, 2012 10:00 AM PST

NEW YORK — Corbin Fisher this morning filed court papers opposing the Electronic Frontier Foundation's motion to act as a friend of the court in support of a pair of defendants sued for allegedly trading porn online.

The gay adult studio said last week's amicus brief filing in a case involving New York roommates charged with copyright infringement for distributing "Corbin Fisher's Down on the Farm" through a BitTorrent network is an attempt by the San Francisco-based innovation and consumer rights group to "distract the court."

In the original suit filed at U.S. District Court in New York, Corbin Fisher charged that roommates Cary Tabora and Schulyer Whetstone  were responsible for infringement, or at least one of them is.

EFF, in its amicus brief in support of the roommates, 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.

But Corbin Fisher attorneys call foul over EFF's motion last week to join as a friend of the court.

In a three-prong opposition, Corbin Fisher attorneys said that the amicus brief should be blocked because counsel in the Tabor case have all along been EFF attorneys (in the New York case, as well as another one involving the roommates that was dropped in California), the brief is duplicative and restates the defense's case, and that the brief offers a false argument because it mischaracterizes Corbin Fisher's legal position on Wi-Fi technology in the case.

"[T]he brief is part a fallacy," Corbin Fisher attorneys wrote in its opposition to EFF. "It sets up a straw man not present in the case, only to melodramatically knock him down."

Corbin Fisher said that the EFF is trying to "re-frame" the case as a wholesale opposition to Wi-Fi "copyright negligence" claims in commercial environments; however, that's not the case here.

"The EFF dishonestly states that it is seeking to protect the rights of 'unsuspecting wireless Internet providers,'" Corbin Fisher attorneys said. "If that was the EFF's concern, then the EFF could have approached [Corbin Fisher] to ask if that was [its] intent. It could have asked if [Corbin Fisher] would stipulate that it was not seeking to hold anyone liable under the 'unsuspecting victim' theory."

The gay studio has asked for EFF's motion to include itself as a friend of the court to be denied.

"The EFF has no place in the case," Corbin Fisher attorneys said. "The proposed [amicus] brief is untimely, replete with misleading statements, erroneous factual assertions, is procedurally improper, offers no new information or perspective, and is simply the result of a previously arranged collusion between the [EFF] and Mr. Tabora."

In reaction to the latest Corbin Fisher filing, EFF staff attorney Mitch Stolz said, "It's obvious that [Corbin Fisher] doesn't want the court to think about the disastrous implications of  [its] silly 'copyright negligence' legal theory. But that theory would burden law-abiding Internet providers and users with legal risk and would conflict with federal law, and that's what we're pointing out to the court.

"[Corbin Fisher's] filing is misleading. Contrary to [its] insinuation, EFF does not represent Mr. Tabora, who has his own, independent attorney," Stoltz said. "EFF got involved to show how a bad result in this lawsuit will inevitably affect other Internet users, and we believe that's a valuable contribution to the case."

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