Summary:

In a victory for Comcast, a federal judge in Chicago quashed four subpoenas that would have let a porn studio identify hundreds of subscribers accused of using torrent technology to share videos.

In a victory for Comcast, a federal judge in Chicago quashed four subpoenas that would have let a porn studio identify hundreds of  subscribers accused of using torrent technology to share videos.

The judge’s ruling is significant because it rejects a controversial shortcut that a growing number of publishers and pornographers are using to target copyright infringers. In the bigger picture, the case may provide a clue into the ongoing delay in a long-awaited “six-strikes” deal between copyright owners and U.S. internet service providers.

Comcast stops a “shakedown”

In the Comcast case, a Caribbean-based holding company sought the names of subscribers it accused of sharing an adult video. The firm, AF Holdings, had obtained subpoenas in different states that required Comcast to supply the names of hundreds of these “John Does” based on their internet addresses.

AF Holdings sued Comcast for contempt of court after the internet giant told it to get lost by refusing to hand over the subscribers’ names and email addresses. In a court filing, Comcast said the subpoenas in question should be quashed because AF Holdings was abusing the legal system:

The plaintiffs have no interest in actually litigating their claims against the Doe defendants, but simply seek to use the Court and its subpoena powers to obtain sufficient information to shake down the Doe defendants.

According to Comcast, AF Holdings’ real agenda was to obtain the defendants’ email addresses in order to threaten and embarrass them into paying a settlement.

The court agreed with Comcast but did not provide written reasons. In a one-page order dated last week, the court wrote: “The four subpoenas are quashed. Civil case closed.”

How the John Doe racket works

Comcast deserves credit for standing up for its subscribers but, unfortunately, they represent just a fraction of the tens or hundreds of thousands of Americans who are the target of similar intimidation tactics.

As Comcast points out in its court filing, lawyers for AF Holdings have filed 118 cases against over 15,000 “John Does.” But this is just the tip of the iceberg.

If you search federal court records for names like “Boy Racer,” “Patrick Collins LLC,” “Malibu Media” and other pornography-related corporations, you will discover thousands of other cases that are all pursuing a business model similar to that of AF Holdings.

The business model works like this: the pornography company files a copyright complaint against “John Does 1-150″ (where the John Doe names are to be filled in later). The complaint says computers that belong to the John Does are using bit torrent technology to share files and asks the court for a subpoena that requires an ISP (like Comcast) to identify the computers. The company then gets a court order like this:

The subpoenas shall be limited to providing Plaintiff with the true name, address, telephone number, email address, and Media Access Control address of the Defendant to whom the ISP has assigned an IP address

The John Does are now real people and the pornographers’ lawyers can contact them and demand a settlement. In some cases, the lawyers treat the order as a green light to begin a campaign of terror and embarrassment. Ars Technica, for instance, reported earlier this year about a rogue West Virginia lawyer who used outrageous methods to sue more than 22,000 John Does across the country.

The John Doe pornography cases smack of blackmail (one can imagine the settlement offers — “Mr. Smith, you can pay a $5,000 copyright fine to make this gay porn incident go away forever”) but that is just the beginning of the problem. There is also the question of innocent people getting swept into these indiscriminate lawsuits and facing threats, default judgments and more.

Worst of all, the John Doe-style litigation is now poised to go mainstream as not just pornographers but regular companies embrace it too. Publisher Pearson and its subsidiary John Wiley, for instance, are now suing thousands of John Does too.

The copyright concerns, however, are legitimate. John Wiley claims that tens of thousands of its “For Dummies” books are being downloaded without permission and it is probably telling the truth. The pornography industry too has a right to complain about unauthorized distribution of its movies. Like it or not, the law of the land grants the same copyright protection to Shakespeare in Love and Muffy the Vampire Slayer.

Content owners are entitled to protect their creations. Unfortunately, whatever efficiency the “John Doe” suits provide is simply not justified by the rampant abuse and legal disorder they produce. Comcast made the right decision to blow the whistle.

John Doe and “Six Strikes”

Comcast’s bold decision to stand up for subscribers comes at the same time that a “six strikes” copyright enforcement scheme was supposed to go into effect in the United States. The scheme is the fruit of a landmark agreement between content owners and ISPs who have reportedly agreed to take on a greater role in policing file sharing. Under its terms, repeat file sharers are to face an escalating series of warnings and penalties.

The deal, widely reported in 2011, was supposed to go into effect this year but the start date keeps getting pushed back. Recent reports predicted a July date but now that seems to receding too. In response to an e-mail query, a spokesperson for the Recording Industry Association of America wrote:

The dates set forth in the MOU are not hard deadlines but were intended to keep us on track to have the [Copyright Alert System] up and running as quickly as possible. No ISP plans to launch until we are confident that each of the key components of the program is ready and able to be implemented in a manner consistent with all of the goals of the MOU. We expect our implementation to begin later this year.

This is only speculation but the failure of “six strikes” (the RIAA disagrees with the terms, saying there is no “out”) to materialize may be tied to the tidal waves of John Doe lawsuits that are being unleashed across the land. Comcast and other ISPs, which are supposed to send emails to their own subscribers under the deal, may be wary of becoming associated with the more controversial tactics of AF Holdings and others. As a result, “six strikes” may be on hold until content owners or the courts solve the John Doe mess.

Comcast declined to comment on either the lawsuit or “six strikes.”

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