The lawyers who do most of the jousting over Internet copyright issues were abuzz last week after learning that a federal court judge suggested one of the more prominent among them had advised clients to destroy evidence.
On Wednesday, U.S. District Court Judge Kimba Wood issued a 59-page decision in Manhattan granting summary judgment in favor of the Recording Industry Association of America in its long-running copyright fight against file-sharing service LimeWire. The order opened the door for the top four record companies to force a closure of the service.
In addressing an issue of whether statements made by a former LimeWire executive should be considered by the court, Wood called out Fred von Lohmann, the much-quoted senior staff attorney at the Electronic Frontier Foundation, an advocacy group that fights for the rights of Internet users and technology companies. According to Wood, LimeWire founder Mark Gorton testified that he and former company Chief Technology Officer Greg Bildson received questionable advice from von Lohmann.
"Gorton states that another attorney, [von Lohmann], gave [LimeWire], including Bildson, confidential legal advice regarding the need to establish a document retention program to purge incriminating information about LimeWire users' activities," Wood wrote in her decision.
Wood's suggestion that von Lohmann acted improperly has raised eyebrows. It is hard to imagine that Wood, a federal court judge for 23 years, would have risked calling out an attorney for potential wrongdoing unless she saw something she didn't like, said legal experts. Wood doesn't offer any further explanation or mention von Lohmann elsewhere in her decision. It's hard to say what she meant exactly. But to critics of EFF and von Lohmann, who come mostly from the pro-copyright camp, Wood's description of his advice confirms what they've suspected for years. They say von Lohmann has long provided tutorials to file-sharing services on how to break the law and get away with it.
In an interview with CNET, von Lohmann denied any wrongdoing.
"Providing advice to clients about document retention is something lawyers do all the time," von Lohmann said. "In discovery, there are a lot of documents, and clients need to understand what obligations they have about keeping documents and not keeping them based on what the law requires. That's a conversation lawyers have with clients who fear litigation is a possibility. I don't see anything particularly nefarious about this kind of a conversation with a potential client."
On Tuesday, Cindy Cohn, EFF's legal director, sent a request to Judge Wood asking her to modify her written decision in regards to von Lohmann. "We believe the materials in the record do not support the inclusion of the phrase 'to purge incriminating information,'" Cohn wrote. "As you may imagine, Mr. von Lohmann and EFF are concerned that his professional reputation has been put at risk."
A champion of the movement to relax copyright law to prevent it from thwarting technological innovation, von Lohmann has clashed with entertainment conglomerates in some of the Internet's biggest copyright battles, including the landmark decision, MGM Studios vs. Grokster. In most of these big cases, including Grokster, the file-sharing services were defeated.
In his zeal to keep some of these services from being sued out of existence, von Lohmann has gone too far, say critics. During the Grokster trial, MGM's lawyers noted that von Lohmann in 2001 wrote a primer called "Peer-to-Peer File Sharing and Copyright Law After Napster." In the piece, von Lohmann advised that to "avoid liability," operators should create "plausible deniability" by "choosing an architecture that will convince a judge...monitoring and control is impossible."
In a paper titled "What Peer-to-Peer Developers Need to Know about Copyright Law," von Lohmann wrote, "The court also found that Napster had a duty to monitor the activities of its users "to the fullest extent" possible. Accordingly, in order to avoid vicarious liability, a P2P developer would be wise to choose an architecture that makes control over end-user activities impossible."
Is von Lohmann instructing file-sharing services on how to avoid violating the law here, or is he teaching them how to violate the law and avoid responsibility?
"There's an important difference between not creating documents in the first place and destroying documents after there is a reasonable apprehension of litigation," von Lohmann said. "I am discussing in those papers questions about how you design a product and how you can withstand litigation without violating the law. I stand behind those statements."
John Steele, who teaches legal ethics at Indiana University and the University of California at Berkeley, says there's a thin line between advising companies on how to retain documents properly and appearing to help them destroy evidence. "It's tricky," Steele said. "An attorney can never help a client improperly discard evidence."
After reviewing Wood's comments on von Lohmann, Steele said the judge's choice of such words as: "purge" and "incriminating evidence" serves to "grab your attention powerfully...I can certainly understand why everybody is paying attention to them."
Steele cautioned, however, that it's impossible for anyone to know whether von Lohmann crossed the line without knowing what advice the attorney gave LimeWire executives. Citing attorney-client privilege, von Lohmann declined to provide details of his discussion with LimeWire.
Michael Page, the attorney representing Greg Bildson, LimeWire's former CTO, said Monday that von Lohmann gave his advice to the company before the RIAA filed its case. "They could have destroyed anything they wanted to at that point," Page said. But the law requires parties in lawsuits to preserve documentation when there is a reasonable expectation of litigation.
For their part, copyright owners may be a bit sensitive to the issue of data retention. The destruction of evidence has been a particular sticking point in some high-profile Internet copyright cases.
In May 2008, a federal judge ordered TorrentSpy, a BitTorrent index accused in a film industry lawsuit of copyright violations, to pay $110 million to the Motion Picture Association of America (MPAA) after finding that site operators had hid and destroyed evidence. TorrentSpy, which later went bankrupt, claimed that it didn't intentionally lose any information.
In the MPAA's copyright face-off against RealNetworks over its DVD-copying software, RealDVD, U.S. District Judge Marilyn Patel sanctioned Real for losing three notebooks belonging to one of the company's former engineers. Patel ordered Real to pay some of the studios' legal fees and also said she would assume when deciding which way to rule that the MPAA's assertions about what was in the notebooks were correct. Earlier this year, Real settled with the studios and agreed to scrap RealDVD.
In the music industry's lawsuit against the Usenet network last year, the top four labels accused Usenet of destroying evidence and failing to produce witnesses on multiple occasions. The federal judge found numerous instances of misconduct by Usenet.
Attorneys who represent technology companies in copyright issues have rallied around von Lohmann. Said Jack Lerner, a law professor at the University of Southern California and a former attorney at Silicon Valley firm Wilson Sonsini Goodrich & Rosati: "Fred is one of the smartest and most ethical attorneys I know."