Yesterday, a federal judge in the DC circuit court of appeals handed Prenda law -- the most loathed and evil porno copyright trolls in the business -- its own ass on a plate, and struck a blow against copyright trolling everywhere. The Electronic Frontier Foundation's Mitch Stoltz has a deep dive into the case, which EFF participated in.
Prenda (previously) is one of the leaders in the shady practice of accusing people of downloading pornographic films with embarrassing titles and then demanding money in exchange for not filing a lawsuit against them, using the threat of having your name associated with "Anal Invaders XII" in public records forever as a lever to get you to settle even if you've done nothing wrong. In AF Holdings v. Does 1-1058, Judge Tatel struck an important blow against this practice by ruling that trolls have to file cases in the same jurisdiction as their victims in order to get court orders to reveal the victims' names and addresses, without which the cases cannot proceed. But filing cases in the correct jurisdiction will likely cost more than the average blackmail payment that Prenda extorts from its victims, making the whole thing into a losing business.
The court also held that merely being accused of having, at some point, participated in a Bittorrent swarm does not join you with everyone else who ever joins that swarm, and that there is only joint liability for people who download from one another, as part of the same swarm at the same time. This is the first-ever federal ruling on copyright trolling's most evil practices, and it represents a major victory for the good guys.
Today, the appellate court agreed with us, and set some powerful precedents. On the jurisdiction issue, Circuit Judge Tatel ruled that in order to subpoena ISPs for subscribers' names, a plaintiff must show a "good faith belief" that Doe Defendants have a connection to the court's geographic territory. Quoting EFF's brief, Judge Tatel noted that Prenda could have used simple geolocation tools to determine what state or region each Doe likely lived in, rather than suing people from all over the country in one court. If Prenda had done so here, it would have discovered that most of the Does were likely not DC residents. "[W]e think it quite obvious," he wrote, "that AF Holdings could not possibly have had a good faith belief that it could successfully sue the overwhelming majority of the 1,058 John Doe defendants in this district."
The court also put a major limit on the number of Doe Defendants who can be lumped into one suit. While many people may share files in a single BitTorrent swarm over the course of days or months, the court suggested that only those who participate at the same time could be joined together in a single copyright infringement case. Delving deeper than most courts into the workings of the BitTorrent protocol, Judge Tatel used an analogy that EFF suggested during last month's oral argument:
[T]wo BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions. And “[s]imply committing the same type of violation in the same way does not link defendants together for the purposes of joinder.”
Major Victory Over Copyright Trolls: A Deeper Look
(Image: Clown Mushroom Cloud, Tao Wu, CC-BY)