Judge Advances Lawsuit Over Pirated Porn

CHICAGO (CN) - A porn-production company can proceed with a lawsuit against hundreds of people it says shared its videos and images illegally using BitTorrent protocol.

First Time Videos filed suit last year against 500 unknown defendants for infringing on its copyright. The Nevada-based company distributes adult videos and photographs online.

BitTorrent is a decentralized means of distributing data that operates through a hive-like protocol, as opposed to the traditional "hub and spoke" method. Central computers, called trackers, store lists of individual users that can send data directly to one another, with multiple users' data interacting at once.

First Time Videos subpoenaed Internet service providers to reveal the account holders of various Internet protocol addresses linked to the illegal downloads.

When the ISPs subpoenaed its users, 21 of them moved to quash, four moved to dismiss and eight moved to sever.

These claims were winnowed somewhat by First Time Videos' decision to dismiss certain defendants in June.

U.S. District Judge Ruben Castillo flatly rejected the remaining motions last week.

The court held that the quash motions did not request the kind of privileged information protected by the Federal Rules or the Constitution.

"Anonymous speech does not enjoy absolute protection," Castillo wrote, quoting precedent. "Indeed, copyright infringement is not protected by the First Amendment."

This interest outweighs the fact that "a BitTorrent user may be express himself or herself through the files selected and made available to others in a manner that may be entitled to First Amendment protection," according to the 23-page ruling.

The defendants' motion also relied on the Electronic Communications Privacy Act, under which "a person or entity providing an electronic communication service to the public shall not knowingly divulge the contents of a communication."

But Castillo said "the subpoenas at issue do not seek the contents of a communication." Rather, they seek identifying information such as names and addresses that may be disclosed under the act.

Though "the putative defendants' First Amendment right to anonymous speech on the internet is implicated," Castillo said "courts have consistently held that Internet subscribers do not have a reasonable expectation of privacy in their subscriber information, as they have already conveyed such information to their ISPs."

The court also rejected the defendants' argument that compliance with the subpoenas would subject them to an undue burden.

"If anyone may move to quash these subpoenas on the basis of an undue burden, it is the ISPs themselves, as they are compelled to produce information," Castillo concluded, adding that personal-jurisdiction arguments are premature at this stage.

The court declined to dismiss the case on the grounds that the defendants lack liability, noting that denials of liability "are not relevant as to the validity of a subpoena, but rather should be contested once parties are brought properly into the suit."

The defendants can try to sever at a later date, according to the ruling.

Although a large numbers of parties are involved, "joinder at this stage is consistent with fairness to the parties" as it promotes judicial economy, Castillo wrote.

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