New tactic in mass file-sharing lawsuit: just insult the EFF

An old legal aphorism says, "If the facts are on your side, pound on the facts. If the law is on your side, pound on the law. If neither is on your side, pound on the table." After reading the latest salvo in the P2P porn copyright wars, it's clear that some poor table has been abused horrifically.

The craziness comes from the most recent filing in a Hard Drive Productions case against nearly 1,500 "Doe" defendants accused of sharing one of the company's films online. The case, filed in DC, follows the familiar pattern: sue anonymous Internet users in some random federal court, use the case to obtain subpoenas, unearth the identity of the Internet users, and send them "settlement letters" offering to save them from litigation if they would just pay a few thousand dollars.

The Electronic Frontier Foundation (EFF) has contributed to many of these cases, arguing—sometimes successfully, sometimes, not—that such cases are an abuse of the judicial process. Yesterday, the EFF filed a brief in the Hard Drive case; by the end of the same day, the Chicago-based lawyer handling the case had responded in amazing fashion. Rather than address any substantive arguments made by the EFF, lawyer Paul Duffy decided simply to attack the group itself.

"The EFF is opposed to any effective enforcement and litigation of intellectual property law," says the filing before going on to brand it "a radical interest group" with a mission that is "radical, quasi-anarchist, and intrinsically opposed to any effective enforcement of intellectual property rights."

EFF has a history of "advocating lawlessness on the Internet," and its purpose is to "hinder and obstruct" the legal process. Giving the EFF liberty to speak to the court would be "wholly fatuous." Not only does the EFF apparently hate IP law in general; it also has a "deep disdain" for "the law generally, in any sphere in which the law might touch the Internet."

The "argument," such as it is, is bizarre on its face. EFF has submitted amicus briefs in many cases across the country, and is a widely known digital rights organization. In one notable example from Texas, a judge facing similar mass P2P lawsuits actually invited EFF counsel to participate until "Doe" defendants could be named and then represented by their own counsel. (In that case, the judge ended by sanctioning the lawyer who brought the case, fining him $10,000 and ordering him to pay another $22,000 to the lawyers from EFF and Public Citizen.)

The blog "Fight Copyright Trolls," which covers this sort of litigation, called the new filing "so amusingly detached from reality that I had to drink a couple of shots just to gain some kind of consciousness after reading this crap."

It's certainly a novel attempt to keep the EFF away from a case, even digging up EFF co-founder John Perry Barlow's deliciously over-the-top 1996 manifesto to paint the group as extremist.

In response, Barlow tweeted, "This is cool. Porn copyright troll John Steele [assumed to be behind the case] files a brief that consists solely of insults to EFF."