In a lawsuit filed by movie studios against a Net-based service that indexes BitTorrent downloads, the service has been ordered to log users' IP addresses as a part of discovery. EFF and CDT have filed an amicus brief objecting.

The concern with privacy in this case puzzles me. The principle seems to be that copyright is

somehow denigrated below other legal rights. Suppose the torrents in question involved photographs of someone taken and released without their consent (by someone peaking over the fence or into a window, say). Or trade secrets, or financial, medical, or other personal records. Whatever the material, a civil suit is brought. Should the plaintiff be stymied in his attempt to protect his own privacy or security because the torrent indexer failed to draft a reasonable privacy policy? Surely not. If not in those cases, why in the case of a copyright suit--which is yet another sort of security?

The indexer's privacy policy ought to have included a reservation for court orders. If it didn't, it was misleading. This ought not to be the studios problem.

And finally, this isn't a criminal case. Remedies in a civil suit are, well, civil. The uploaders and downloaders are not being subjected to torture or imprisonment; if pursued, they'll be out of pocket. Not a inappropriate penalty (although some of the amounts have gotten inflated, that is another problem). It is possible, now that the data are being collected, that the government will show an interest in prosecution as well. It might be appropriate for the court to stipulate that the data obtained in discovery is to be kept confidential unless there is a further court order. But this supposes that the privacy of infringers ought to trump the rights being infringed. Again, why? If copyright is indeed to be so far denigrated that it becomes unenforceable... why have it at all?

To put it another way, to say that one supports basic copyright, but then to oppose any practicable means of making it enforceable seems deeply conflicted to me.

posted by Solveig Singleton @ 11:29 AM | Enforcement & Remedies, Privacy and Security

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