From the Porn Piracy Files: Copyright trolls have found a friend in Judge Beryl Howell

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from www.techdirt.com – We’ve written about judge Beryl Howell a few times before. She’s the recently-appointed judge whose immediate job prior to that was as a lobbyist for the RIAA. Before that, she worked for the Judiciary Committee and was apparently a key player in drafting the DMCA.

It seems pretty damn clear that she holds a strong viewpoint on the nature of copyright law and copyright infringement — but that hasn’t stopped her from taking those cases, even when her rulings appear to be exactly the opposite of nearly every other court. For example, while most courts have been throwing out copyright trolling lawsuits for improper joinder, Judge Howell had no problem with the practice and ordered various ISPs to cough up names based solely on IP addresses.

The ISPs asked her to reconsider back in April, noting how pretty much every other court has ruled otherwise. The specific case involves well known trolling firm, Prenda Law, which is connected to one of the larger jokes in the copyright trolling business: John Steele. Steele’s lawsuits have been laughed out of court and he’s even been told to stop filing these bogus lawsuits, where the clear purpose is to use the judicial system as a weapon to force people (innocent or guilty) to pay up.

But apparently copyright trolls have found a friend in Judge Howell, who not only is welcoming them with open arms, but seems to be using these trolling cases to further the goals of her former employer. She’s released her decision on the motion to quash the subpoenas, and it’s basically a 42-page screed on the evils of infringement and how ISPs should be responsible for stopping piracy (much of which has absolutely nothing to do with the case at all).

The only nod towards the other side seems to be a weak acknowledgement that “the Court recognizes that other Judges on this Court have reached different conclusions with respect to the legal questions posed by the ISPs” and thus she’s agreed to stay her decision until the appeals court weighs in.

But she makes sure to get her arguments in for the appeals court to read, and it certainly feels like she reverted back to “lobbyist” mode, rather than “impartial judge.”

She kicks off the polemic with a grand history of the DMCA, and how the task force that was created to write the DMCA originally wanted to pin liability on ISPs for actions done by their users. And while she admits that eventually the DMCA did include such liability protection, it seems clear she would have preferred it the other way.

She then highlights the important court decisions from a decade ago, against the RIAA and in favor of Verizon and Charter, that ruled that the RIAA could not demand ISPs identify users without actually filing a lawsuit against them first. This, of course, was a basic recognition of basic privacy rights, and the fact that if you are going to expose someone’s private info, you ought to at least file a lawsuit against them first. But, in the world of Judge Howell, apparently this was a bad decision. She approvingly cites the dissent in one of the key cases, claiming this somehow “unraveled” the balance struck in the DMCA. Nothing, of course, is further from the truth. That’s a total rewrite of reality.

She also seems to suggest — contrary to the very law she was just citing — that ISPs have some sort of responsibility to “deter infringing activity.”

Other than barebones references from two of the four movant ISPs that these subpoenas impose “a substantial administrative burden,” the ISPs fail to present any witness or other evidentiary detail to demonstrate a burden to the Court, let alone what steps the ISPs are or could be taking to deter infringing activity on their networks to reduce any burden subpoena compliance engenders.

This is a fascinating interpretation of the law. Basically, she says that if they’re going to claim that copyright trolls are showing up with tens of thousands of IP addresses, demanding they all be identified, then that means they also have to show that they’ve taken “steps” to “deter infringing activity on their networks.” In other words, if it’s burdensome to the ISPs to identify users to copyright trolls, it’s their own damn fault for failing to stop infringement. Seriously.

Oh, and then she flat out misrepresents the GAO’s findings from a few years ago that found that all of the entertainment industry’s claims about the impact of “piracy” were complete bunk. Yet, in the world of former RIAA lobbyist Judge Howell, the GAO actually came to the opposite conclusion:

The plaintiff’s estimates regarding the amount of online infringing activity and the economic harm resulting from such activity is corroborated by a recent government report. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10- 423, INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY THE ECONOMIC EFFECTS OF COUNTERFEIT AND PIRATED GOODS 23-24 (2010) (estimating that U.S. economy annually loses $58 billion, over 370,000 jobs, and $2.6 billion in tax revenue as a result of copyright infringement over the Internet) (citing Stephen E. Siwek, THE TRUE COST OF COPYRIGHT INDUSTRY PIRACY TO THE U.S. ECONOMY, Institute for Policy Innovation (IPI), IPI Center for Technology Freedom, Policy Report 189 (Oct. 2007)).

Uh, no. Go read what the GAO actually said. While the report does cite Siwek’s widely discredited report of $58 billion in losses — it does so only to say that Siwek did these studies and they claimed to show “ripple effects” beyond the immediate industry. However, most of the rest of the report highlights how those numbers, and others like them, cannot be substantiated and that most experts they spoke to found the methodology questionable.

Furthermore, the report specifically calls out the reports that only try to calculate the negative impact, without even considering any possible positive impact, as being clearly misleading. That describe’s Siwek’s research exactly. Specifically, the GAO report noted:

Since there is an absence of data concerning these potential effects, the net effect cannot be determined with any certainty

In other words, sorry, but the Siwek claim of $58 billion is hogwash. And yet Judge Howell pretends that the GAO has blessed this number.

The ruling goes on to defend its position, but basically says that there is no burden on the ISPs and if there is one, it’s their fault. It also says that there is no issue of improper joinder to consider until after everyone’s identified (at which point it won’t matter, since that’s all the copyright trolls want, so they can then shift to demanding cash from them). The whole thing, once again, raises significant questions about why a judge who had such a vested stake in pushing for an extreme maximalist view of copyright now gets to judge cases where key decisions are made about the interpretation of copyright law.

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