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Summary:

Lawyers who use copyright law to extort porn downloaders may find their days are numbered. An appeals court this week rubbed out an important part of their business model.

A copyright troll that built a business model on extorting porn downloaders suffered a major defeat Tuesday at the hands of the U.S. Court of Appeals for the Federal Circuit.

In a unanimous ruling, a three judge panel denied AF Holdings’ request to obtain en masse the identifies of thousands of internet subscribers who had allegedly used BitTorrent, a file-sharing service, to obtain copyrighted porn videos.

While the ruling was about procedure, it matters in the bigger picture because it could destroy the unsavory business of what the court calls “a porno-trolling collective.”

No more easy shakedowns

If you’re unfamiliar with porn trolls, the racket works like this: lawyers obtain the copyright to x-rated movies, and then uses software to identify the IP address of those who download the movies. The lawyers then ask internet service providers to identify the subscribers associated with those IP addresses, so they can in turn approach the subscriber and say, “pay us a settlement or we’ll take you to court — and publicly identify you in the process.”

In the rare case the subscriber fights back in court, the porn troll will just walk away in search of easier victims, of which there have been thousands.

These tactics made the trolls a lot of money. As the appeal court noted, the alter-ego of AF Holdings, known as Prenda Law, reportedly made $15 million in three years. The court observed its “strategy … was highly successful because of statutory- copyright damages, the pornographic subject matter, and the high cost of litigation.”

The new decision, however, knocks out a crucial pillar of that strategy. It says that AF Holdings can’t force ISP’s (who also dislike copyright trolls) to turn over hundreds of subscriber identities at one time, simply by claiming the infringers were all part of the same BitTorrent “swarm.” Instead, the troll must file separate lawsuits to obtain the identity of each defendant.

Taking the time to identify each defendant and bringing a proper legal action ruins the easy economics of the trolls’ shakedown scheme.

Whatever your opinion of pornographers, they are entitled under copyright law to the same rights as any other movie-maker. This might lead some to ask why AF Holdings (aka Prenda Law) should not have the right stop infringement just as Steven Spielberg or Quentin Tarantino might do.

One obvious answer is that the AF Holdings’ tactics are closer to blackmail rather than a bone fide attempt to stop infringement. Another reason not to shed any terms for AF Holdings is that its scheme has likely ensnared innocent people, especially since a subscriber associated with an IP address might not be the same person as the one who downloaded the porn.

There’s also the fact that lawyers behind AF Holdings (described in the decision as “attorneys with shattered law practices”) did not create the copyrighted work, but simply obtained it — and not always legally. Some of the signatures that transferred the works to the trolls turn out to have been forged, according to the decision, which could lead to sanctions for the lawyers. 

Finally, the porn trolls’ behavior discredits copyright as a whole. Their unethical business practices make the public cynical about copyright laws that, when used responsibly, can provide important support for movie-making and many other forms of culture.