Rodney A. Smolla, President, Furman University
November 21, 2011

A recent “ABC News” broadcast focused on the huge threat posed to the adult film industry by the proliferation of Internet sites distributing free pornography.  To those who might wish the adult film industry good riddance, the battle between professional porn producers and free porn sites might be greeted with the shout “a pox on both your houses.”

But whatever one thinks about the players in this drama, the drama itself is a compelling lesson in the capacity of the Internet to frustrate the rights of copyright owners.  In a desperate legal effort to hold the free porn sites accountable, porn producers have filed a spate of suits, typically against various unknown “John Does,” followed by various subpoena requests calculated to identify and shut down the infringers.  Courts have generally been sympathetic to the copyright holders’ efforts in these cases, and unsympathetic to claims that the subpoenas should be quashed because they violate free-speech rights protecting Internet anonymity.

A typical example is First Time Videos, Inc. v. Does 1- 500,1 arising in the federal district court in Chicago.  The plaintiff, First Time Videos, LLC, was a porn producer.  First Time alleged that the various Does it sued used BitTorrent to distribute and to offer to distribute its videos for free, without First Time’s permission.  As the court explained, the BitTorrent protocol is a decentralized method of distributing data, resembling a “hive” more than a “hub.”  The BitTorrent protocol allows individual users to send data directly to one another, using central computers, called trackers, to store lists describing “swarms,” the groups of individual users who are involved in downloading and distributing specific files.  The decentralized character of the BitTorrent protocol makes it a remarkably robust and efficient means of distributing data.  That same decentralized character also makes BitTorrent inherently frustrating to copyright holders, effectively insulating BitTorrent from efficient anti-piracy measures, including legal actions seeking injunctive relief to prevent the unlawful distribution of copyrighted material.

The court in First Time Videos rejected efforts by the putative defendants in the case to interpose the First Amendment as a shield against the subpoenas the porn producer served to identify the alleged infringers.  The court recognized that some measure of First Amendment protection attached to both the act of file sharing and the anonymity of the file sharers.  But this protection, the court observed, was not absolute.  Just as the free-speech values protected by the First Amendment may in appropriate circumstances give way to civil and criminal laws dealing with defamation or obscenity, the court observed, First Amendment protections may yield to society’s interest in enforcing the nation’s copyright laws. A “Doe Defendant” who is alleged to have used the Internet to unlawfully download and disseminate copyrighted content, the court held, has a minimal expectation of privacy in remaining anonymous, and whatever First Amendment anonymity rights the Doe Defendant may possess should give way to the rights of copyright holders to use judicial process to pursue what on their face appear to be meritorious copyright infringement claims.

The First Amendment rights of the file sharers, the court reasoned, were at a “low ebb” in relation to those of the copyright holders, who had no practical way of using the courts to combat piracy in the absence of subpoenas providing identifying information regarding file sharers.  Even though it was true that a “BitTorrent user may be expressing himself or herself through the video and photographic files selected and made available to others in a manner that may be entitled to some level of First Amendment protection,” the court held, that right should be subordinated to the copyright holder’s interest in counterattacking the assault on the holder’s copyrighted works.