Judge: BitTorrent Downloads Are Protected Anonymous Speech (Updated)

Miami Judge Marc Schumacher has issued a landmark order in which he protects accused BitTorrent downloaders from mass-lawsuits filed by copyright holders. One of the main arguments of the judge is that these "fishing expeditions" violate BitTorrent users' right to anonymous speech, which is protected by the constitution. The order effectively kills all BitTorrent lawsuits in Florida state courts.

anonymousEvery first year law student knows that copyright-related court cases are exclusively a matter of federal law. You can’t bring a copyright suit in state court, period.

However, starting last year more and more BitTorrent-related cases were filed at Florida state courts. The copyright holders in these cases are exploiting a loophole based on the pure bill of discovery, which allows them to demand subpoenas to send to Internet providers without having to provide any evidence.

For months this cheap trick proved to be very effective, but not anymore. In the case of movie studio Boy Racer against 615 unnamed BitTorrent users, Judge Marc Schumacher has issued a landmark ruling.

The judge starts off by describing mass-BitTorrent lawsuits as “fishing expeditions” and brands the copyright holders as trolls.

“[These suits are].. used to extort settlements from defendants who are neither subject to the courts’ personal jurisdiction nor guilty of copyright infringement, but who are fearful of the consequences of being publicly named as a defendant in a suit that seeks disclosure of the contents of their personal computers.”

The judge notes that many federal courts have dismissed BitTorrent lawsuits, and he himself now does the same, but for different reasons.

The basis of the dismissal is the fact that “copyright trolls” are violating BitTorrent users’ right to anonymous speech, a right that’s protected by the First Amendment.

“The Supreme Court often has recognized that the First Amendment protects anonymous speech. Other federal courts have held that Internet users sharing copyrighted works via the BitTorrent application are themselves engaged in anonymous speech that warrants First Amendment protection,” the judge writes in his order.

Judge Schumacher goes on to explain that because he has no jurisdiction over copyright matters, he cannot establish whether the claim of the copyright holder trumps the anonymity of the defendants. Thus, it is impossible for a state court to conclude whether the copyright holder’s request to identify the file-sharers is legitimate or not.

In short, it means that BitTorrent users’ right to anonymous speech shields them from being exposed through state court lawsuits.

In addition Judge Schumacher also ruled that the “pure bill of discovery” cannot be used for mass-BitTorrent lawsuits at all. The reason for this is that these subpoenas are supposed to target the defendant, not a third-party such as an Internet provider in this case.

Commenting on Sophisticated Jane Doe’s blog, where the news about the order broke, lawyer Richard Viscasillas suggests that the decision could mean the end of nearly all mass-lawsuits in Florida state courts.

“This latest Order by Judge Schumacher is now the only precedent in the 11th Judicial Circuit that I and other attorneys will be invoking to get all pending cases by all Plaintiffs dismissed with prejudice,” Viscasillas writes.

“This is the proverbial ‘shot heard around the world’ that may just spell the end of all the ‘pure bill of discovery’ troll lawsuits in Miami-Dade County, Florida. The Trolls have to be in an absolute state of panic right now.”

The order is indeed quite remarkable, and good news for tens of thousands of BitTorrent users who have been sued in Florida. Although BitTorrent itself is far from anonymous, it’s good to see that there are judges who prevent this fact from being abused though troll tactics.

Update: Shortly after this article was published we learned that the order in question has been vacated.

It turns out that the order was drafted by a defense attorney and Judge Schumacher apparently signed it by mistake, assuming all parties agreed on it. This is bad news for the defendants and means that the mass-BitTorrent lawsuits in Florida state courts are very much alive for now.


The order..

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