When Porn Copyright Trolls Attack And Judges Fight Back
Everyone has heard of patent trolls or copyright trolls like Righthaven, but the rapid evolution of the new porn troll has scientists puzzled. This new species of lawyer has emerged in the past two years as an intriguing example of how natural selection can quickly influence the trajectory of a species.
Like its brethren, the porn troll issues a flood of letters to alleged infringers. What's unique about many of these lawyers, however, is the scope and nature of the actions. Think of it as a class-action lawsuit in reverse. Porn trolls gather several hundred anonymous users who are identified only by IP address, files suit against all of them simultaneously, subpoenas the ISP, and sends a letter to the alleged defendants essentially saying "Do you want everyone to know you downloaded Backdoor Space Goddesses of Whorotica 69? No? Then give us money!
You know what the difference is between extortion and a settlement? The lawsuit. There's substantial evidence that the plaintiffs filing these suits had little interest in bringing them to trial and were instead attempting to make a quick buck through scary language and pressure tactics. One anonymous John Doe who contacted the "negotiator" appointed by the porn troll offered full and unilateral access to his equipment to prove his innocence. The negotiator wasn't interested.
The good news is that judges across the country are increasingly slamming the lid on this abuse of the system. Judge Gary Brown criticized the attempt to link IP addresses to particular people, noting that "it is no more likely that the subscriber to an IP address carried out a particular computer function—here the purported illegal downloading of a single pornographic film—than to say that an individual who pays the telephone bill made a specific telephone call. Indeed, due to the increasingly [sic] popularity of wireless routers, it is much less likely."
The only way for porn trolls to sue a block of anonymous John Doe's is if it can prove that IP addresses can be reliably tied to specific individuals. Judges are increasingly saying that they can't be, and the comments in the ruling back that up. Suing a man more than 80 years old and in ill health for allegedly downloading pornography is rather bad PR and stupid to boot. Multiple defendants have testified that "the plaintiff has contacted them directly with harassing telephone calls demanding $2900 in compensation to end the litigation."
Judge Brown spends the next 15 pages cheerfully shredding the case and rules (in case you were wondering), that joining a BitTorrent "swarm" does not constitute a group action to violate the rights of the copyholder. Finally, he notes that the tactic of filing a single court case that attempts to sue several hundred people simultaneously is also a clever way of avoiding the $350 per lawsuit filing fee that would normally be owed. Suing 600 people individually costs you a cool $210,000. Suing them all at once? $350.
The only downside to the judge's ruling is that we're going to miss out on watching lawyers stutter over all those porn titles in the middle of a cross-examination. The potential for Freudian slips and awkward moments is nearly too good to pass up. But, for the sake of all of us, we have to take a pass. IP addresses aren't people, and shouldn't be treated as if they represent a fixed record for anyone's location or activities.
Like its brethren, the porn troll issues a flood of letters to alleged infringers. What's unique about many of these lawyers, however, is the scope and nature of the actions. Think of it as a class-action lawsuit in reverse. Porn trolls gather several hundred anonymous users who are identified only by IP address, files suit against all of them simultaneously, subpoenas the ISP, and sends a letter to the alleged defendants essentially saying "Do you want everyone to know you downloaded Backdoor Space Goddesses of Whorotica 69? No? Then give us money!
You know what the difference is between extortion and a settlement? The lawsuit. There's substantial evidence that the plaintiffs filing these suits had little interest in bringing them to trial and were instead attempting to make a quick buck through scary language and pressure tactics. One anonymous John Doe who contacted the "negotiator" appointed by the porn troll offered full and unilateral access to his equipment to prove his innocence. The negotiator wasn't interested.
The good news is that judges across the country are increasingly slamming the lid on this abuse of the system. Judge Gary Brown criticized the attempt to link IP addresses to particular people, noting that "it is no more likely that the subscriber to an IP address carried out a particular computer function—here the purported illegal downloading of a single pornographic film—than to say that an individual who pays the telephone bill made a specific telephone call. Indeed, due to the increasingly [sic] popularity of wireless routers, it is much less likely."
The only way for porn trolls to sue a block of anonymous John Doe's is if it can prove that IP addresses can be reliably tied to specific individuals. Judges are increasingly saying that they can't be, and the comments in the ruling back that up. Suing a man more than 80 years old and in ill health for allegedly downloading pornography is rather bad PR and stupid to boot. Multiple defendants have testified that "the plaintiff has contacted them directly with harassing telephone calls demanding $2900 in compensation to end the litigation."
Judge Brown spends the next 15 pages cheerfully shredding the case and rules (in case you were wondering), that joining a BitTorrent "swarm" does not constitute a group action to violate the rights of the copyholder. Finally, he notes that the tactic of filing a single court case that attempts to sue several hundred people simultaneously is also a clever way of avoiding the $350 per lawsuit filing fee that would normally be owed. Suing 600 people individually costs you a cool $210,000. Suing them all at once? $350.
The only downside to the judge's ruling is that we're going to miss out on watching lawyers stutter over all those porn titles in the middle of a cross-examination. The potential for Freudian slips and awkward moments is nearly too good to pass up. But, for the sake of all of us, we have to take a pass. IP addresses aren't people, and shouldn't be treated as if they represent a fixed record for anyone's location or activities.
