Electronic Frontier Foundation Says Illegal Download Charges Are “Predatory”

by Matthew L. Schafer

(Update: 6/30/2010: According to a press release from the EFF, “Judge Collyer ordered the plaintiffs, TWC and amici to work together to draft a notice that could be sent to subscribers whose information is sought.”  EFF, while pleased with the Collyer’s decision felt more could have been done.  “EFF and its co-amici had urged the court to go a good deal further, because we believe the posture of these cases violated fundamental principles of fairness.”)

Today a Federal Judge heard evidence from the Electronic Frontier Foundation on a motion by Time Warner Cable to quash subpoenas filed against Time Warner Cable.  The subpoenas would require Time Warner Cable to turn over the names of hundreds of its Internet customers who allegedly downloaded the film “Far Cry” to the film’s creator.

Time Warner Cable has refused to turn over their customers, and was joined in an amicus brief by the American Civil Liberties Union, the Electronic Frontier Foundation, and Public Citizen, all of which are citizen advocacy groups.

The U.S. Copyright Group (USCG) hired by Achte/Neunte Boll Kino Beteiligungs GMBH & CO KG., a German company that both created and distributed “Far Cry,” is alleging that the users of the IP addresses it captured using technology provided by the British technology company GuardaLey violated their client’s intellectual property rights.

“In accordance with the conditions in the attached order, provide the name, current (and permanent) address, telephone numbers, [and] email addresses… of all individuals whose IP addresses are listed,” the April 9 subpoenas to Internet service providers (ISP) read.

Without the cooperation of the ISPs, GuardaLey has no way to identify the defendants in a list similar to the one below.  Due to the anonymity of the IP user without ISP cooperation, the March 18 complaint was filed against “Does 1–4,577.”

 

Individual settlements for the customers of the many of the ISPs that complied with the subpoenas ranged from $1,500 to $2,500, depending on the promptness of payment.  If all defendants had paid on time Achte/Neunte would have made $6,865.500.  The movie Far Cry grossed approximately $700,000.  Defendants who settled could do so online at a quick pay website.

Time Warner Cable moved to quash the subpoena, however.  In the amicus brief, the council for the EFF, the ACLU, and Public Citizen argued that the court did not have the jurisdiction over the IP addresses outside of the District of Columbia, where the complaint was filed.  Additionally, they argued that the USCG had improperly bundled together thousands of individuals into a single case.

The citizen advocacy groups went on to argue that “Robust protection for the right to engage in anonymous communication – to speak, read, view, listen, and/or associate anonymously – is fundamental to a free society.”

This list of IP address was collected for a similar case regarding infringement on the movie "The Hurt Locker."

In a June 28 press release, the EFF, the ACLU, and Public Citizen called lumping all defendants into one case “predatory,” and wrote, “USCG’s strategy appears to be to threaten a judgment of up to $150,000 per downloaded movie-the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement-in order to pressure the alleged infringers to settle quickly for $1,500 – $2,500 per person.”

In response, the USCG argued “Each time a Defendant unlawfully distributes a free copy of Plaintiff’s copyrighted motion picture to others over the Internet, each person who copies that motion picture can then distribute that unlawful copy to others without any significant degradation in sound and picture quality.”

In it’s motion to quash the subpoena, Time Warner Cable said they simply did not have enough time or manpower to look up the ever increasing amounts of information requested by the USGS.

They argued, “If the Court compels TWC to answer all of these lookup requests given its current staffing, it would take TWC nearly three months of full-time work by TWC’s Subpoena Compliance group, and TWC would not be able to respond to any other request, emergency or otherwise.”

While this case is not a new development in United States courts, past cases have been settled with little consistency.  The result of this case, one of the largest, could have effects far beyond Time Warner Cable and Achte/Neuten.  A decision on the motion to quash the subpoenas is expected from District Judge Rosemary M. Collyer in the near future.


My View:  Frankly, I cannot believe more people are not talking about this case.  No matter what, the outcome will be interesting.  I tend to agree with the Courts decision in Sony v. Does 1-40 that: “Arguably, however, a file sharer is making a statement by downloading and making available to others copyrighted music without charge and without license to do so.  Alternatively, the file sharer may be expressing himself or herself through the music selected and made available to others.  Although this is not “political expression” entitled to the “broadest protection” of the First Amendment, the file sharer’s speech is still entitled to “some level of First Amendment protection.”

 

While this case is interesting in and of itself, what may be more interesting is potential complaints filed if the Comcast/NBC merger goes through.  Indeed, it is worth asking what the potential harm of Comcast using a similar type of eavesdropping technology to track customer’s interaction with NBC content. The consequences for individual privacy when a content distributor and content producer the size of Comcast/NBC is unknown.  Moving forward this should be of increasing concern.

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About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
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