EFF's Cohn fights copyright's 'underbelly' (Q&A)

An unmistakable strain of compassion runs through Cindy Cohn's voice when she talks about the plight of Internet users she says are wrongly accused of copyright violations or tech companies she believes are being abused by large entertainment conglomerates.

She sounds like a nurse or an understanding second-grade teacher. But that's just one of her gears. Cohn, legal director for the Electronic Frontier Foundation, likely the most recognized technology advocacy group, can throw it into high and become a skilled courtroom brawler.

To protect the privacy of Internet users, she faced off with the Bush administration over the warrantless monitoring of Web use. Under Cohn's leadership, EFF has opposed the big film studios, four largest music labels, and major software companies--some who say EFF helps enable intellectual property theft--in countless copyright cases. This year, Cohn and EFF have taken on lawyers who are attempting to sue tens of thousands of people on behalf of independent film studios and pornographers.

The trend of suing individuals for copyright violations is currently one of the most controversial legal topics in tech. On Friday, EFF filed a "friends of the court" brief and asked a judge to dismiss copyright claims against two defendants accused of sharing indie films brought by the law firm of Dunlap, Grubb & Weaver. Dunlap has has spearheaded the lawsuits for the copyright owners.

For a decade now, technologists and many Internet users have considered EFF a friend. Cohn agreed Monday to discuss with CNET the recent copyright battles.

Q: You guys have challenged Dunlap on several issues and said it is wrong to name thousands in one lawsuit. Tell me why that's wrong?
Cohn: We've attacked them on a couple of principles. We filed a brief on Friday in one of Dunlap's cases on misjoinder (the legal term for the inclusion of parties in a single legal action). It's a fundamental principle of law that you should be judged on your behavior. If you lump a bunch of people together, it's harder for each individual to have their case heard and evaluated on the merits. By lumping thousands of people together in the same lawsuit, you put each one of those individuals at a disadvantage. And you, I think, increase the pressure on them to pay you some shakedown money to make the thing go away rather than actually address the case on the merits.

Again, joining thousands of people together is only one of the techniques. We've see two or three different techniques these trolls are using to try to make sure these people just pay them the money rather than fight. Another technique is suing people in random places. This isn't where they live or even where the filmmaker is. The two places you think about suing someone is where the plaintiff is or where the defendant is. But the Dunlap suits, they've sued in Washington, D.C., and there's nobody in Washington, D.C., except for Mr. Dunlap, the lawyers. I don't know who is in West Virginia (where several porn studios filed copyright cases against a combined 5,000 people last month. The lawyer handling those cases is based in West Virginia).

Talk about ratcheting up the pressure. Finding a lawyer in West Virginia to even make an appearance on your behalf is very, very difficult. It's a small place, a small bar. We have a list of lawyers who are willing to help people and I wonder if we have anybody in West Virginia. If we do, I suspect it's very few people. Again, you're really just creating a situation where people don't have any leverage to raise any defenses. You are stacking the deck.

I've written a bunch of these stories and people who have been accused ask me what they should do. What advice can you give them?
Cohn: You really do need to find a lawyer. I just looked at our list. We've got a subpoena defense resources list of lawyers who have offered to help people. Not all of them are free but at least they will help. We don't have anyone in West Virginia, which is too bad. I hope any West Virginia lawyers reading your story will contact us because these people need help. So, I think (the accused) need to get counsel. They can look at the resources we have available but it is the kind of thing where you need someone to look at your particular situation. They need someone to walk through the legal options for them to make the best choice for them. It's not a one-size-fits-all situation.

But they can at least start at EFF?
Cohn: That's right. And there is a long list of lawyers there who are offering assistance. Finding someone where you are or where the lawsuit was filed is a good place to start. Often the local person can help you find someone in the place where you were sued.

I think for these porn cases it's especially troubling, even having your name associated. People have a very good interest in [not just avoiding being sued] but not having their name associated here if they have been wrongly accused. We've heard about a lot of people say they are wrongly accused with some pretty good stories about how it couldn't have been them. So, it does appear to us that whatever investigative techniques that plaintiffs are using here, they are not very good. [The Recording Industry Association of America] made some mistakes along the way as well, but by the time they got going on this pretty well, we didn't hear a lot about false positives. Now, we've heard from a lot of people who say "I'm 69 years old, I don't even know what BitTorrent is. I don't understand. I've never looked at a porn film in my life"...stories that are pretty believable. I obviously don't have the resources to check them all out but the percentage of this is much higher.

And of course the leverage to get people to pay money to make it go away when what they are accused of having done in cases of hard core porn or gay porn is much higher. I'm very worried that this is looking more like a shakedown than what the justice system is designed for.

You are talking to the attorney representing the people who have already been accused by Dunlap and presumably they settled. Can you tell me what is happening in these negotiations? What are the amounts people are paying?
Cohn: I can't say. I'm not at liberty to share. The agreements have confidentiality in them. Many of the lawyers aren't telling me and if I am hearing about it I can't be disclosing it. It's very, very troubling. The secrecy around this thing is as troubling as everything else.

Is there any good news at all for people who are accused?
Cohn: In the Dunlap cases, we filed an amicus brief on Friday on the question of jurisdiction. The reason we did that is because two people who were sued early on wrote letters to the judge, one of them in Oregon and the other person in Pennsylvania, saying "I don't know what's going on here and indicated they weren't in Washington, D.C. So the judge issued an order to show cause about why the case should go forward in Washington, D.C., and Dunlap wrote a brief that said "Well, hell maybe they were visiting Washington, D.C., or maybe they were uploading or downloading from somebody in Washington, D.C." They just showed those as examples.

They don't have any proof. They were just making stuff up as a hypothetical possibility. That's not enough for personal jurisdiction and so we wrote an amicus brief to the judge pointing that out. Hopefully [the judge] will rule that all these people were sued in the wrong place. Or at least that there has to be more proof that there is some basis for suing them in Washington, D.C.

If so, that's going to change the game a bit for the lawyers who are running these troll campaigns because if you have to sue these people where they actually live or someplace other than your home court, then it's going to raise the costs and expense. We're hoping that if enough people stand up and fight on these procedural issues it can really have an impact on their business model. Everybody has to make a decision for themselves based on their situations, but this is a business model that I think operates on pretty small margins and so the cost of fighting even a couple of cases will make it not cost effective and certainly will discourage other lawyers from jumping into the fray. I think there is a sense with some of these early cases that this might look like free money for lawyers and making these trolls actually follow the rules that everyone else has to follow in lawsuits, then this will raise their costs.

What do you tell copyright owners who say, "What do you want us to do to protect our copyrights? Piracy is costing us big money and we have to make it stop, so how are we supposed to go about it?"
Cohn: Well, I think that suing ordinary people and dumping thousands of them into lawsuits is not about protecting copyrights. It's a business model for lawyers. I just don't see it. I mean how much of this money is actually going to the copyright holders as opposed to the lawyers and the investigative firms? I'm a big fan of the plaintiff's lawyers sometimes, but this is crazy. These people are putting on the mantle of copyright owners. Look, we had a legitimate argument about this with the RIAA and the [Motion Picture Association of America]. We didn't like the idea of suing ordinary people as your business model. We didn't think it was going to save the music or movie industry. I don't think it's going to save the newspaper industry and as far as I know the porn industry is not hurting. I'd like to see the numbers.

I would be surprised if we were about to lose porn as an industry because of file sharing.

I think you have to be careful about people who are putting on the mantle of copyright owners and pretending when really what they're doing is lining their own pockets. I would like to see the numbers. Are they really about to go under? If so, EFF has said there is a better way forward. We've long said that the right way to think about copyright law is how to get money to creators. We've got our proposal for voluntary collective licensing scheme. There are plenty of other ways to do this other than suing thousands of people all across the country in a single lawsuit in West Virginia. If you could come up with the worst way possible to deal with copyright law this would be on the list. It's just phony.

Again, there's a legitimate dispute that were having with real copyright holders about how to handle problems in the digital age. There's experimentation going on by the real copyright owners, the Cory Doctorows and Radioheads of the world. But these other people? Don't confuse these litigation business model people with the actual people thinking about copyright law in the digital age. These other people are just the seedy underbelly of litigation. They are just shaking down a whole bunch of people for money that they put in their own pockets.