Hi Karl. I knew you’d show up. 🙂

The right to privacy, for one; the right to due process, for another. But others have explained this better.

A subscribers’ expectation of privacy is just one factor courts consider in these Doe defendant infringement cases. I’ve not seen a case where a subpoena was challenged on due process grounds. I can’t imagine how such an argument would be fruitful though. The subpoena is a threshold matter, not the whole enchilada.

The two are naturally in conflict. Copyright is, by nature, the statutory right to prevent expression. It may not be original expression, but the First Amendment makes no requirement that the protected speech be original. That may not be apropos in this case, but it is in others – particularly regarding “derivative works.” See e.g. the “sequel” to Catcher In The Rye that is illegal in this country.

Justice Ginsburg explained it to Prof. Lessig during oral arguments in Eldred: “The First Amendment securely protects the freedom to make — or decline to make — one’s own speech. It bears less heavily when speakers assert the right to make other people’s speeches.”

Personally, I think rights holders should not be able to bring suit for online infringement because that infringement is non-commercial in nature. Copyright was always supposed to protect publishers from competing publishers. The fact that rights holders are going after individuals is a perversion of copyright, and creates all of the dangers that the original founders explicitly warned against. In my opinion.

This case is a good example. Quite obviously the defendants’ right to privacy is being violated in the worst sort of way, and by private corporations – who shouldn’t have this ability in any situation. It is turning the country into a surveillance state at the request of corporate rights holders. Whether legal or not, it is wrong.

There’s certainly a good argument to differentiate commercial and non-commercial infringement, and that difference comes into play in certain circumstances when it comes to burdens in a trial. However, I don’t agree that an infringement’s commercial nature changes much in the way of whether it’s justifiable for the plaintiffs to enforce their rights.

Well, there’s the question of jurisdiction, for one. For another, not all the defendants may have committed the same crime, to the same degree, and many are probably innocent.

It also reveals the U.S. Copyright Group’s motives. They are not looking to prevent infringement, and it makes no difference to them whether or not the infringement resulted in losses. It is simply a money grab. Before they took it down, their website presented these lawsuits as a way for content creators to “monetize” filesharing. If they had actually followed the law, and filed one “John Doe” suit per defendant in the correct jurisdiction, they would lose a lot of money in filing fees. That’s not a big deal if they ever intended to go to court, but that’s not really their intent – they just want to send out legal nastygrams so that the defendants will be frightened into settling. It’s “extortion by lawsuit,” and if it’s not officially an abuse of the courts, we really need to change the laws.

Jurisdiction is certainly a problem, but not at the subpoena stage of proceedings. The whole point of jurisdiction is to identify the defendants so jurisdiction can be determined. There may be some innocent defendants caught in the mix–this is inevitable–but on the balance of it all such things are justifiable. Innocent people are accused wrongly of civil and criminal offenses everyday. The system isn’t perfect, but it strives to be.

USCG is following the law. They even had the unusual step of having to justify their grouping of defendants together in one suit to the judge in the “Far Cry” case. They did so and were permitted to proceed. What you call a miscarriage, the court called proper. Agree with it or not, USCG has done things by the book.

And USCG is going to court, individually, after the people who didn’t settle. This kind of ruins the argument that people have been making all along that they aren’t going to do so.

Yet this is exactly what the ISP is doing, and you are objecting to it.

Not at all. In Midcontinent’s specific case, they were right to challenge the subpoena. The subpoena was flawed.

In general, though, there isn’t a good basis to do so.