ACLU Amicus Urges DC Circuit to Overturn AF Holdings Ruling

WASHINGTON. D.C.—The American Civil Liberties Union joined the Electronic Frontier Foundation, Public Citizen and Public Knowledge in filing an amici curiae brief with the D.C. Circuit Court of Appeals Tuesday in support of appellants Comcast Cable, Bright House Networks, AT&T Internet Services, Cox Communications and Verizon, who late last year appealed an August 2012 ruling by U.S. District Judge Beryl A. Howell in AF Holdings LLC v. Does 1-1,058 et al that compelled the ISPs to identify 1,058 anonymous subscribers alleged by AF Holdings to have illegally downloaded one adult movie via BitTorrent protocols. The “friend of the court” brief is necessary, according to the ACLU’s Motion for Leave to File, in order “to inform the Court of the imminent harm the Doe Appellees face before service of process, and the harm faced by other victims of abusive litigation tactics in BitTorrent-related copyright lawsuits against numerous defendants.” According to Law360, the ACLU in its brief alleged that “AF Holdings' business model is to sue anonymous Web users it believes have downloaded copyrighted adult videos, seek their identity through subpoenas and use the threat of being publicly accused of accessing porn to extract settlements.” The ACLU further asserted that Judge Howell erred in her evaluation of the Prenda Law methodology. "While other courts have described this as an extortion scheme with the courts as unwitting accomplices," it stated, "the district court in this case believed that it 'serves our system of justice' to allow it. It does not.” In addition to claiming that AF Holdings, represented by Prenda lawyer Paul Duffy, can show that only a few of the Does allegedly identified by IP address in its lawsuit reside in Washington, D.C., where the suit was filed, the ACLU brief also goes for the jugular by arguing, “A copyright owner must justify its extraordinary use of the court's subpoena power with a minimum showing, providing assurance to the court that the subpoenas will not be used in the service of a shakedown.” The use of the term “shakedown” by the ACLU is severe but not totally out of left field in light of recent revelations that Duffy, working on another case for Prenda clone Anti-Piracy Law Group, has been sending demand letters to alleged infringers who have not replied to earlier letters, warning them that their neighbors and family members will be contacted as part of a “pre-complaint investigation…to gather evidence about who used your Internet account to steal from our client.” Neighbors and family members are also characterized in the letters as “possible suspects.” Somewhat ironically, reports Law360, “In their appeal brief filed last week, the ISPs wrote that most other courts handling similar lawsuits have denied requests to identify scores of anonymous Web users, in part because Internet connections are often unsecured, meaning the connection's owner did not necessarily download the allegedly infringing content.” Law360 in its article also takes notice of the sanctions levied last week by California Judge Otis Wright II against “the law firm Prenda Law, whose attorneys also represent AF Holdings, in a similar case, saying that their porn copyright suits amount to extortion and that the firm deserved to be prosecuted under federal racketeering laws.” One of the sanctioned attorneys, John Steele, told AVN that he intends to appeal. An extended interview with Steele conducted last week by Ars Technica can be found here.