File-Sharers Have Right to Anonymous Speech, Court Hears

• Ernesto
• June 27, 2013
• copyright trolls

Several advocacy groups including the Electronic Frontier Foundation and the American Civil Liberties Union is have joined a group of major U.S. Internet providers in their protest against mass BitTorrent lawsuits. They state that these cases are “essentially an extortion scheme,” as many courts have started to realize recently. The groups further argue that the lawsuits violate file-sharers’ right to anonymous speech, which is protected by the First Amendment.
Earlier this year a group of large ISPs including Verizon, AT&T, Time Warner and Cox took a stand in one of the many mass-BitTorrent lawsuits pending in U.S. courts.
The ISPs appealed a district court decision ordering them to reveal the identities of 1,058 subscribers accused of pirating movies.
The decision granted the adult movie company AF Holdings the right to obtain the personal details of subscribers suspected of downloading their works using BitTorrent. In their appeal the providers pointed out that the copyright trolls are trying to create an environment in which they can sue many people at minimal cost.
In their efforts the Internet providers are now backed by advocacy groups including the Electronic Frontier Foundation, American Civil Liberties Union, Public Citizen and Public Knowledge.
Together they filed an amici curae brief to the appeal court, which was accepted this week. They tell the court that initially these type of mass-lawsuits worked well for the copyright holders, but in recent months more and more judges have objected to these practices.
“The tide is turning, as judges across the country are recognizing that these lawsuits are ‘essentially an extortion scheme’,” the groups write.
The brief goes on to argue why joining so many defendants in one case shouldn’t be allowed, explaining that it is merely a strategy by the copyright holders to extract as much money as possible from alleged file-sharers at minimal cost.
In addition, the rights groups also note that by exposing the identities of the alleged BitTorrent users, the order violates their right to anonymous speech.
“The district court’s order also failed to consider the Does’ First Amendment right to communicate anonymously on the Internet, including by the use of BitTorrent. While this right is qualified, it must be given meaning in a copyright case as in any other.”
“The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment,” the brief reads.
The rights groups cite previous cases to back up their claim, including a recent decision where the makers of the Call of the Wild movie sued BitTorrent users. The judge here argued that the defendant’s First Amendment rights can’t be overlooked.

“File-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity.”

A similar reasoning should be applied in this case, the rights groups tell the court, not least due to serious concerns about whether the defendants should all be listed in the same lawsuit to begin with.
“Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement,” they write
“The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.”
Of course, the groups don’t necessarily mean that the right to anonymous speech trumps copyright infringement in all instances. However, in these mass-lawsuits that have built up a reputation for abusing the court’s subpoena power for shakedown practices, it is something that should be considered.
For the reasons above, the groups ask the court to quash the subpoenas and deny AF Holdings’ motion to compel the ISPs to reveal the identities of the defendants.