SAN FRANCISCO, June 30, 2010 -- A copyright holder can't just randomly rummage around an internet service provider's logs of its customers' online activities with the vague hope of somehow finding those too cheap to pay for their entertainment, a group of public interest lawyers are scheduled to argue Wednesday in a D.C. court.
Protecting everyday internet users' online privacy and rights through an orderly legal protocol may not be as dramatic as the plot line for Mystic River, but it's the same idea: Justice can't be served without a methodical and well-thought-out investigative and legal process. Attempts to shortcut the checks and balances can often ensnarl people who have nothing to do with the infraction, backfire and result in further injustice.
That's the gist of what the lawyers at the American Civil Liberties Union, the Electronic Frontier Foundation and Public Citizen are going to tell a federal district court judge Wednesday. The judge is scheduled to hear opening arguments in a couple of cases where movie makers have launched mass copyright infringement lawsuits against thousands of internet users that they suspect have pirated their movies using the BitTorrent protocol.
"Amici file this brief because we are deeply concerned that serious problems of fairness, due process and individual justice are being raised by this and several related mass copyright lawsuits pending in this District against thousands of individual internet users," write the public interest lawyers in a brief filed with the court.
A law firm representing seven movie makers has spent the first quarter of 2010 launching mass copyright infringement lawsuits against more than 14,000 individuals. The complaints ask the court to issue subpoenas to internet service providers for the identities of the alleged infringers.
The case is worth watching because US courts have not come to any agreement as to what a fair process is when parties want to unmask anonymous people online. In April, the US Court of Appeals for the Second Circuit decided that copyright holders who suspect infringement could subpoena ISPs for the identities of their customers.
"The First Amendment does not ... provide a license for copyright infringement," the court said in that opinion.
Time Warner Cable, one of the ISPs that would have to cough up almost 400 identities behind the internet protocols fingered in one of the cases, has asked the judge to quash the subpoena because it would be too expensive and burdensome to comply, according to a May court filing.
The public interest groups have weighed in on Time Warner's side. But their arguments focus on legal process in the interest of establishing a fair system that gives the accused a better chance at responding to those accusations.
In this case, the ACLU, the EFF and Public Citizen argue that the movie maker's lawyers have been sloppy and haven't provided adequate enough evidence to convince the judge that these particular internet protocol addresses need to be investigated for potential copyright infringement.
The EFF submitted information that shows, for example, the identified IP addresses could be anywhere in the country and not in Washington, D.C., which is where the infringements would have had to occur for the judge to take the case.
The issue is that plaintiffs generally have to provide some good faith evidence that there's a good reason for their suspicions, or they could be sanctioned by judges for abusing the legal process.
The EFF and the other organizations want the judge to quash the subpoena, and to require ISPs in the future to issue targeted customers a Miranda-like warning of the receipt of the subpoena for their information.