Evan Stone Gets 'EFF'-ed Up in Porn Copyright Trolling Sanctions - U.S. Fifth Circuit
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

Evan Stone Gets 'EFF'-ed Up in Porn Copyright Trolling Sanctions

Copyright trolling seems to be a decent business model, until a court starts imposing sanctions. And woe is the attorney on the receiving end of those sanctions, according to a recent Fifth Circuit Court of Appeals opinion.

Attorney Evan Stone represents Mick Haig, a company which produces pornographic films. Their copyright infringement lawsuit — which lead to attorney sanctions against Stone — is at the root of this appeal.

Mick Haig identified 670 unnamed persons who it claimed had unlawfully downloaded its film Der Gute Onkel using Bit Torrent, an online file-sharing program. The company sued the alleged infringers as John Doe defendants (the Does), and then sought permission to expedite discovery in order to subpoena the Does' ISPs to disclose their names and contact information before the required Federal Rule of Civil Procedure (FRCP) 26(f) discovery conference.

The district court appointed attorneys from the Electronic Frontier Foundation and Public Citizen Litigation Group (the attorneys ad litem) to represent the Does in responding to the motion, and ordered the ISPs to preserve certain records. It never actually gave the go-ahead for Stone to issue subpoenas.

Before the district court could rule on the motion to expedite, Mick Haig voluntarily dismissed its case. The attorneys ad litem suggest that Stone already had what he wanted by that time: information about the Does that he could use to contact the Does directly.

That's essentially what the copyright trolls do. They threaten alleged infringers with lawsuits that will cost thousands between attorneys fees and potential fines, and offer settlement agreements. "They're interested in scaring accused downloaders into forking over a couple thousand dollars apiece to make the accusations go away," according to Allison Frankel from Thomson Reuters News & Insight.

While copyright trolling may be a bad idea, the attorneys ad litem claimed that Stone crossed the line into "serious misconduct." They told the district court that Stone violated FRCP 26 and FRCP 45 by issuing subpoenas to the ISPs in the case, and later communicating directly with some of the Does.

The district court characterized Stone's behavior as "staggering chutzpah" and imposed attorney sanctions. Stone appealed.

The Fifth Circuit Court of Appeals affirmed the sanctions on Thursday, concluding that Stone flagrantly violated of the Federal Rules of Civil Procedure and the district court's orders.

The appellate court noted, "Stone committed those violations as an attempt to repeat his strategy of suing anonymous internet users for allegedly downloading pornography illegally, using the powers of the court to find their identity, then shaming or intimidating them into settling for thousands of dollars, a tactic that he has employed all across the state and that has been replicated by others across the country."

Be warned, attorneys: The Electronic Frontier Foundation and Public Citizen are fighting trolling actions in multiple jurisdictions, and they will push for attorney sanctions. If you get EFF-ed in court, don't say we didn't warn you.

Related Resources: