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A Federal Appeals Court Just Made Downloading Porn A Whole Lot Safer

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"A Federal Appeals Court Just Made Downloading Porn A Whole Lot Safer"

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CREDIT: Shutterstock

A firm know as Prenda Law was, in the words of one federal judge, a “porno-trolling collective.” Through a shell company, the attorneys who ran this firm obtained copyrights to several porn films, identified the IP addresses of people who had downloaded those porn films, used the legal system to identify the individual Internet service subscribers associated with those IP addresses, and then — having identified hundreds or even thousands of people who secretly download pornography — extracted settlements from these porn users under the threat of a public lawsuit.

As it turns out, this threat was largely a bluff. When one of the people targeted by Prenda actually demonstrated that they were willing to go to court, Prenda would dismiss their case against this defendant. Many defendants, however, were cowed either by the costs of litigation or the potential embarrassment of having their porn viewing habits made public, so settlements were common. Prenda reportedly brought in $15 million in less than three years.

On Tuesday, however, a federal appeals court erected a procedural barrier to Prenda’s business model that will make it difficult — if not impossible — for this kind of “porno-trolling” to succeed in the future. For Prenda’s tactic to succeed, it must be able to identify the specific defendants who allegedly downloaded copyrighted pornographic films. To do so, it initiated what are known as “John Doe” lawsuits, often suing hundreds of unnamed individuals that they knew little about other than the IP address they allegedly used to download porn. After bringing this lawsuit, the porno-trolls would subpoena Internet service providers to identify the names of the subscribers associated with these IP addresses. By initiating massive, multi-defendant lawsuits — one case had 1,058 unnamed defendants — Prenda could minimize the expensive filing fees it had to pay every time it brought a case alleging a supposed copyright violation.

Tuesday’s opinion by the United States Court of Appeals for the District of Columbia Circuit, however, holds that these kind of multi-defendant lawsuits are not allowed. In short, the opinion explained that courts are only permitted to hear cases involving defendants who had some minimal contact with the region where the court has jurisdiction. Thus, if Prenda or its associated companies wanted to sue alleged porn users in a federal court in Washington, D.C., they had to at least have a good faith belief that the defendants are “are residents of the District of Columbia or at least downloaded the copyrighted work in the District.” But it was unlikely, to say the least, that the overwhelming majority of the defendants targeted in this case had any connection at all to the District. Three of the Internet service providers subpoenaed in this case do not even offer service in the District of Columbia.

Of course, the court that decided this case only has jurisdiction over Washington, D.C., so it is possible that the porno-trolls will shop around for another jurisdiction where Tuesday’s opinion does not bind the local judges. Nevertheless, the D.C. Circuit’s opinion is both well-reasoned and sharply worded. It’s unlikely that many other courts will be more sympathetic to porno-trolling.

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