Routinely Terrible Anti-Piracy Company Seeks Court Order Preventing TorrentFreak From Covering Its Terribleness

Legal Issues

from the well-your-honor-we-believe-the-site's-readers-are-criminals dept

Ah, MarkMonitor. (Please, my father is “Mr. Monitor.”) MarkMonitor has plenty of clients, few of which have been served competently during its tenure at the forefront of the “War Against Piracy.”

HBO cast its lot with MarkMonitor just to watch it try to take down official HBO URLs in an attempt to thwart pirates. Adobe made the most of MarkMonitor’s incompetence to attempt to take down a Techdirt story discussing its inability to keep its DRM from being cracked, something that appeared to be more stupid than malicious, but concerning nonetheless.

How else has MarkMonitor fucked up? Well, it sent a cease-and-desist to a blogger who wrote a positive review of one of its client’s products, claiming the review was somehow “unauthorized use” of its client’s trademarks. It did the same thing for another customer — one that likely didn’t appreciate the attempt to silence a review of its product, nor the backlash the camera maker received once MarkMonitor got done screwing things up.

MarkMonitor may be no worse than competitors with similarly large customer lists. In these cases, algorithms do most of the work. The question is how much of this work is backstopped by humans — something that could prevent embarrassing mistakes like those listed above. Unfortunately, it’s often quantity over quality, and that’s what’s going to lead to further criticism of MarkMonitor and its anti-piracy efforts.

MarkMonitor, however, wants to deter legitimate criticism of its business activities. It has approached a court and asked for a little of the ol’ unconstitutional prior restraint to ensure it remains uncriticized — at least until a lawsuit against ISP Bright House (one MarkMonitor is not a direct party to) is concluded. It is seeking to prevent TorrentFreak — a longtime reporter on all things piracy-related — from covering anything it turns over to the court during discovery.

This week, anti-piracy MarkMonitor sent a request to a federal court in Florida, asking for the option to file some evidence under seal. This information includes documents, source code, and witness testimony regarding the company’s efforts to track online pirates.

The filing is part of the legal battle between several record labels and ISP Bright House, which is accused of failing to terminate repeat copyright infringement. This accusation is based on evidence from MarkMonitor.

MarkMonitor believes that the requested information is confidential and asks the court to keep it out of the public’s view. This isn’t an unusual request as sealed filings are quite common. However, the argumentation certainly stands out.

It does stand out. The request to file under seal singles out TorrentFreak as a problematic beneficiary of filings MarkMonitor will be submitting to a court system that’s supposed to be operating under a “presumption of openness.” It’s not classic prior restraint — the forbidding of TorrentFreak from writing about this case. It’s oblique restraint — the preventing of TorrentFreak from covering this case by seeking a court order locking out not only TorrentFreak, but the entirety of the United States population. From the request to seal [PDF]:

MarkMonitor’s designation regarding the Confidential Information was made as a result of the materials and testimony being part of or otherwise referencing MarkMonitor’s confidential, proprietary and trade secret information that it employs in its business to maintain its competitive advantage over other persons and entities in the relevant industry. The designation and maintaining the confidential nature of this information by keeping it filed under seal also helps avoid unrestricted publication of the Confidential Information by Torrent Freak (see www.torrentfreak.com) (and others) that serve to provide news and information to the public who may be involved in cyber-piracy, hacking, and illegal or infringing file-sharing of copyrighted material, such as Defendant’s subscribers whose copyright infringement is at issue in this litigation.

Anyone accessing court filings can “provide news and information to the public.” That MarkMonitor singles out TorrentFreak is telling. Lots of questions have been raised about MarkMonitor’s business tactics and acumen, given some of its abject failures in the intellectual property protection field. That MarkMonitor believes TorrentFreak’s readers are mostly cyber-criminals is ridiculous, a claim it cannot possibly hope to support with facts. That TorrentFreak might report on ongoing court proceedings involving subjects it covers regularly is to be assumed. But this assumption is not a justification for sealing or heavily redacting documents related to matters of public interest, like copyright enforcement efforts, ISPs’ potential liability in cases like these, and any abuses of the DMCA process that may have been committed by the music labels who filed the lawsuit or the third parties they hire to police the internet for infringement.

Subtract everything else and we have this ridiculous situation: one non-party approaching the court to ask permission to hide documents from another non-party. The correct response from the court should be a curt GTFO. At the very minimum, the court should demand extensive justification for the withholding of information submitted by an actual party to the lawsuit. MarkMonitor is a third party and its work with record labels is completely relevant to ongoing legal proceedings. If it wants to keep its business stuff hidden from the public, perhaps it should find less litigious customers.

Filed Under: anti-piracy, copyright, court records, sealed documents, transparency
Companies: markmonitor, torrentfreak