Judge: to ask for anonymity in porno copyright troll case, you must enter your name into the public record

Hard Drive Productions is a pornographer that has switched business models, shifting its focus from making dirty movies to making sleazy lawsuits. It collected IP addresses of people who were supposedly downloading its movies over BitTorrent, then sent their ISPS legal demands to reveal their names. The next step would be demanding cash settlements from the named persons, threatening to name them in embarrassing lawsuits if they didn't pay up. Many of the victims of the sloppy data-gathering methodology have protested their innocence, but would like to remain anonymous in the court record, rather than having their names associated in a public document about pornography consumption.

Unfortunately the federal court judge in the case has ruled that in order to request anonymity, the 1495 defendants will have to have their names entered into the public record. The Electronic Frontier Foundation has asked the judge to reconsider.

The case is one of a growing number of mass copyright lawsuits that do not appear to be filed with any intention of litigating them. Instead, once identities of suspected infringers are obtained from ISPs, the plaintiffs send settlement letters offering to make the lawsuit go away for a few thousand dollars. A ruling on whether a film company may obtain identities of anonymous Internet users may be the last chance for defendants to be heard by the court.

EFF's brief explains both the speech implications of the ruling and the importance of the court rules that protect defendants, given the numerous ways these mass lawsuits violate due process.

"All that the plaintiffs need here to pursue their settlement shake-down scheme is the identity of the anonymous defendants," said EFF Intellectual Property Director Corynne McSherry. "These defendants have a First Amendment right to argue for their anonymity without the court forcing them to moot that argument from the start. We're asking for these motions to quash to go forward without requiring them to be unsealed, and we're also asking the court to throw this case out given the basic due process flaws."

EFF Asks Judge to Prevent ‘Catch-22’ in Porn-Downloading Lawsuit


  1. Simple.  Allow your name to be entered onto the public record, after changing it to “Convicted Child Pornographers Hard Drive Productions”…

  2. Couldn’t anyone request anonymity?  If thousands of random people requested anonymity, wouldn’t the list effectively be anonymous?

  3. I predict an above average number of hits on this piece due to the word “pornography”.  I’ll be honest, it’s the only reason I looked.  I can be shallow at times.

    Really though, porn is one of those things that zillions of people watch, but nobody wants anyone to know.  Too late, we know, everyone knows.

  4. The next step would be demanding cash settlements from the named persons, threatening to name them in embarrassing lawsuits if they didn’t pay up.

    Geez, I could’ve sworn this was a crime called extortion.

    1. Oh no this is a perfectly legal concept of settlement negotiations.
      You will just be expected to be publicly shamed for having your name attached to porn, and spend more money than the cost of the settlement to prove that your not a degenerate porn freak and thief.
      It is a fair and balanced system.

  5. Seriously, are there laws to protect people from being the frivolous targets of lawsuits?  You know, times when, say, the government seizes your business & then just holds on to it till you can’t pay your creditors, or when copytrolls just try to extort you?

    1. Oh but your never actually named in a lawsuit.
      After the Doe case is filed for names, it will languish on the docket often exceeding the 4 month rule of file or drop as required by law.
      They threaten to name you in a case, but because you haven’t been named yet you can settle for a few thousand dollars… about what getting a lawyer to defend you would cost.  Isn’t it just easier to pay up than to have yourself named publicly as someone who watches porn? 

      The more salacious the title or it being gay porn makes it so much better…

  6. It would be nice if a single Judge would actually ignore the “expert” statement in these cases and demand a review by an outside expert into how the IP gathering actually works.
    The “expert” statement comes from someone who is being paid to provide this information and often has a stake in how much is collected.

    John Steele, famously inept copyright troll, claims to have spent a huge amount of money on his secret system for gathering IP addresses.  It could never make a mistake, except for the 70yr old woman who went to the media over them trying to shakedown a payment… and then suddenly they were willing to listen to her denial of the charges and discover… Oh there was a mistake in identifying her.
    Another lawyer working for Steele went to court to demand access to one of their targets homes, computers, computing devices, and anything capable of holding a file because they were resisting the extortion attempt.  He basically admitted to the Judge that despite the claims in the original John Doe lawsuit that IP would lead directly to the alleged infringer that his was not the case.
    John Steele is now using a new company name in Flordia where he is abusing a state law to get John Doe names in what is a Federal Level “crime”.

    Evan Stone, famous for being completely stupid and sharing the name of a porn star, admitted in an interview his method for gathering IP addresses was to join a torrent swarm and download the file with an off the shelf client.  His “investigator” wrote down the IP addresses he observed.  It helps if you ignore that by adding himself to the swarm he was making the infringment worse.  He’s the one who was cited for staggering chutzpah by a judge on the record.

    Marc Randazza, champion of free speech slayer of RightHaven, in his shakedown threat letter talks about speaking with everyone in your neighborhood asking if they used your WiFi to download the movie.  He also thinks that even if your wifi was secure and hacked you owe money for negligence.  He has “settled” several named cases for hundreds of thousands of dollars, amount even other trolls point out in their extortion attempts, but leaves off that the amount will be slowly lowered over time if the defendant makes payments and never does anything naughty ever again.  The cases are actually settled for a few thousand but he gets to put out a press release on xbiz about how he “won” hundreds of thousands of dollars.

    Now there are cases for movies that can’t even be proven to ever have been released except on torrents.  Or copyright cases filed for movies without a US copyright and that even if filed would only qualify for actual damages under the law, but they are still making threats of $150,000.

    The Judges in these cases seem to believe, without question, that the accused are guilty and should be held up to ridicule of having their names published.  They can do this as at least one troll admitted publicly he removed police, fire, politicians from his list of does. 

    Should puritanical views of allegations of watching porn be a reason to use this new scarlet letter?  Some Judges think so.

    Equal justice for some…

  7. EFF is on solid ground in its motion. The usual rule, FRCP 10, is that parties are named. But there are some exceptions established by case law. Roe v Wade might the best known example. I have less experience with anonymous defendants than anonymous plaintiffs. I was one of the plaintiff’s lawyers in Anonymous v Delaware, and other cases about the right to anonymous political speech online. Here there are solid policy grounds, supported by case law, for retaining the anonymity of defendants when the litigation could be construed as a form of harassment or blackmail. Many courts follow the Dendrite rule that the plaintiff has to make at least a prima facie case before non-parties can be compelled to give out information about who the defendants are. I don’t see  links to the filings, and I haven’t checked eff.org so I don’t know all the details of this case.

    More generally, the right to anonymous speech is under attack in this country, due to the way several lower courts have interpreted Citizens United. CU upheld disclaimer rules for corporate speech, after the CU plaintiffs made a weak and misplaced argument against it, but these lower courts are reading that as having entirely abolished the right to anonymous speech.

    1. And then there are the cases in DC (forum shopping anyone) where the Judge, a former RIAA Lobbyist, ruled that the Does had no right to attempt to block the release of their records from the ISPs because they were not named and not a party to the case.  Other Judges have entertained similar notions that Does have no rights to stop this invasion into their privacy until they are named.  The number of named defendants in these cases would barely fill a teaspoon, and a majority of them fell victim to fast word games the lawyers played getting them to point blame at someone else and then pointing out that knowing that means they were responsible for it.
      It is rare a troll will ever name anyone, and a named case almost certainly means there was an “admission” of guilt.  To name someone otherwise opens up their system for IP address collection to expert review, and when it is shown to be flawed all of their cases using that system get sunk.  They stand to lose alot of money if that happens.  The same technology that was shown to have identified a laser printer as pirating the matrix, is being used to scare people into paying thousands to avoid public embarrassment.

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