Appeals Court Hears Oral Arguments in Porn Piracy Case

Rhett Pardon

WASHINGTON — The U.S. Circuit Court of Appeals for the District of Columbia heard arguments today in AF Holdings vs. Does 1-1058, the first U.S. appellate case to focus on legal procedures employed in porn piracy cases.

The appeal, brought on by several ISPs — Verizon, Comcast, AT&T and affiliates — with amicus support from the Electronic Frontier Foundation, the ACLU, the ACLU of the Nation's Capitol, Public Citizen, and Public Knowledge, took a look at the fundamental problems that tilt the playing field against John Doe defendants.

The appellants asked the court today to prevent AF Holdings from obtaining the identities of the 1,000-plus users who are alleged to have downloaded a copyrighted adult film via bit torrent.

At the hearing today, the EFF, led by director Corynne McSherry, was particularly interested in the issue of joinder, the process of joining mass litigants to be heard in one case.

"The court seemed immediately skeptical of the notion of suing 1,000 people at once, but wondered if it might be acceptable to join together 20 bit torrent users who had joined the same swarm to acquire the same work," the EFF said in a release. "The ISPs and amici said generally no, because the plaintiff can't know whether a given Doe 1 acquired anything from a given Doe 2 — in other words, they aren't necessarily part of the same transaction or occurrence.

"We analogized a bit torrent swarm to a casino poker table: over the course of a weekend, a week, or a month, players may come and go, adding and subtracting from the pot, but the players on day one are unlikely to be related to the players on Day 4, or Day 30.

The appellants also directed the court's attention to the fundamental burden on the IP subscribers, noting that the subscribers identified as a result of a subpoena aren't necessarily going to be responsible for any unauthorized activity.

"An IP address, we explained, only tells you the name on the bill, not who is using the account. In this context, it is crucial that courts attend to the burden on the Does, as well as the ISPs.

"The court had a number of question regarding jurisdiction, and directed many of them to counsel for AF Holdings, Paul Duffy. At root, the court seemed to want to know why AF Holdings had not used geolocation tools to help determine where its targets might be located, and why it had not dropped its effort to pursue many of them when the ISPs explained that the Does just weren't in the court's jurisdiction.

"Finally, the court had some questions about AF Holdings litigation tactics, including the shenanigans that have been widely reported elsewhere."

The EFF said that it is difficult to predict how the court will rule but it is encouraged that the judges asked the important and thoughtful questions, and clearly understood both the context and implications of their decision.

"Many district courts have now concluded that the copyright troll business model is fundamentally unfair, and have taken steps to ensure the judicial process is not abused to foster a shakedown scheme."

An audio recording of the hearing can be accessed here.

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