PIA’s attorneys argue that these allegations must be stricken from the case because they are completely irrelevant and “serve only to inflame emotions in a misguided attempt to prejudice the Court and the public against the defendants by false association with the non-parties whose conduct is described in these paragraphs.”
Both ExpressVPN and PIA further denied these allegations in statements to WIRED. An ExpressVPN spokesperson also emphasized that the “operation of ExpressVPN’s service has not been changed or otherwise impacted in any way relevant to the parties’ dispute.”
PIA maintained that this litigation jeopardizes user privacy and that it will therefore keep fighting in court. “We assert that the use of VPNs is a legitimate way to protect one’s online privacy—a fundamental human right, which is increasingly in jeopardy of infringement,” the company said.
Legal counsel representing the movie studios did not respond to WIRED’s request for comment.
While Hollywood has waged legal battles around the globe for years, its fights against the VPN industry in the US ramped up last year. VPN company TorGuard, for example, landed in legal hot water with the same group of plaintiffs who successfully forced the VPN provider into blocking BitTorrent traffic for its US users. And in October 2021, VPN.ht also “settled” with these filmmakers, agreeing to not only block BitTorrent but also to log traffic on its US servers. Hollywood studios have also taken providers like Surfshark, VPN Unlimited, and Zenmate to court.
Film company Voltage, which is among the group of companies regularly suing VPN providers, goes a step further, mailing letters to internet customers demanding fines for alleged piracy and threatening them with legal action.
In March 2021, some of the same production companies suing ExpressVPN and PIA also sued no-log VPN provider LiquidVPN for “encouraging and facilitating” piracy. Later, the film companies demanded $10 million in damages from the company. A judge issued a default judgment against LiquidVPN this March, ordering it to pay the studies $14 million.
That lawsuit largely centered around LiquidVPN’s fiery marketing practices and claimed that the VPN is “optimized for torrenting” and lets you “unblock ISP banned streams.” These tactics, the studios argued, encouraged illicit use of the service by those willing to bypass legal restrictions around accessing online content. They might be right.
According to the Electronic Frontier Foundation (EFF), an internet civil liberties group, Hollywood’s demands are “extreme and not supported by law.” But VPNs are also treading into dangerous territory through their marketing tactics.
“The studios argued that a VPN provider and its hosting company should have had a legal responsibility to monitor what their customers were doing with the service, to see if copyright infringement was going on,” says Mitch Stoltz, a senior staff attorney at EFF. “Not only is that not the law, it would undermine the whole purpose of a VPN service, which is to protect people’s internet communications against eavesdropping.”
Stoltz warns, however, that bold marketing language used by VPNs, such as LiquidVPN’s “optimized for torrenting” claim, can very well be considered “inducement” in a legal context and incur liability for copyright infringement. Fearing the possibility of heavy monetary damages, VPN providers may instead choose to shut down some of their services or settle out of court.
“In contrast, a VPN that doesn’t advertise or encourage infringing uses generally won’t be liable in court even if some users do infringe,” says Stoltz. “That’s an important legal protection for VPN providers, who provide an important service that would be undermined if they were faced with broad monitoring and blocking requirements.”
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