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Porn troll case prompts ISPs to fight to protect customer IDs

Several major ISPs embroiled in a copyright lawsuit with an adult film copyright holder are appealing a ruling in the case that could permit hundreds of innocent subscribers to be harassed by copyright trolls.

The reversal was requested in papers [PDF] filed last week in the federal appeals court for the District of Columbia by Cox Communications; Bright House Networks, which is owned by Time Warner; and Verizon.

Wants subscriber names

In the case—AF Holdings v. Does 1-1058 and Cox Communications, et. al.—the copyright holders allege that 1058 "John Does" engaged in file-sharing through BitTorrent of a sexually explicit film.

As part of the discovery process in the case, AF Holdings wants Cox and the other ISPs to turn over to them personal information on the John Does. The order came from a federal district court judge, Beryl A. Howell, a former lobbyist for the RIAA and Senate staffer who worked on the Digital Millennium Copyright Act, a federal law aimed to protect the rights of copyright holders in cyberspace.

beryl howell federal district court judge
Judge Beryl A. Howell

The ISPs are asking the appeals court to overturn Howell's decision ordering the disclosure of subscribers' names as part of evidence discovery.

According to the ISPs, AF Holdings and its attorneys aren't interested in obtaining the names of the alleged infringers to pursue their case in court, but in order to squeeze settlement money from the subscribers.

"[O]nce the plaintiff obtains the identities of the IP subscribers through early discovery, it serves the subscribers with a settlement demand," the ISPs said in their appeals court filing.

"[T]he subscribers," they continued, "often embarrassed about the prospect of being named in a suit involving pornographic movies, settle."

Moreover, there's a risk that innocent subscribers will be entangled in the copyright holder's web because IP addresses are an unreliable means of connecting an infringer with pirated material, the ISPs argued.

"Due to unsecured and shared Internet connections in Internet subscribers' homes, the contact information that [AF Holdings] seeks is not necessarily a reliable indicator of the true identities of the 'Does' who allegedly downloaded [AF Holdings'] pornography," the ISPs said. They suggest that based on AF Holdings' track record in the many cases it has filed in the past, the personal information the copyright holder seeks is likely to be used primarily to compile a contact list and demand settlement payments, which typically range from $2000 to $4000.

"[T]hese cases present a substantial risk that the ISPs will be required to disclose innocent subscribers’ information for extra-judicial processes, in cases that rarely, if ever, are tested on their merits," the ISPs added.

Could thwart troll tactics

With this appeal, the federal courts have an opportunity to put these kinds of fishing expeditions to rest for good, according to the Electronic Frontier Foundation, which has filed a "friend of the court" brief in the case.

copyright

This is an opportunity for an appellate court to address the due process problems inherent in so-called troll litigation, the EFF said The organization stated, "Given the seriousness of those problems, and the massive burden these cases are putting on the judicial system, individual Does, and ISPs, it is long past time for a higher court to get involved and help end this shakedown scheme for good."

Targeting ISPs who are too willing to cough up subscribers' personal information when served with a subpoena has been a rich vein for quick cash for trolls in the past, so the objection by these ISPs should be welcome by BitTorrent users, argues TorrentFreak editor Ernesto Van Der Sar.

"It’s good to see that Verizon, AT&T, Time Warner and Cox are taking a stand in this case," he wrote Sunday. "Of course it's in their own interests, but it also helps the hundreds of subscribers in this case and perhaps thousands more in the future."

"Unfortunately, the copyright troll cases aren’t going away anytime soon," he added. "But by winning this case the ISPs can at least minimize the damage they cause."

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