Posted on: 8/13/2012
Erik G. Moskowitz, Gallagher Callahan & Gartrell
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Your client comes in to your office and asks for a private meeting. He’s visibly embarrassed. You’ve known this client a long time and you’re surprised that he’s tentative about talking to you. Blushing, he hands you a letter he received from his cable company regarding his Internet usage. And suddenly you’re introduced to a new form of copyright infringement litigation.
Your client’s cable company has been served with a subpoena from a copyright holder seeking the identification of individuals known only by their Internet Protocol addresses. This “IP address” is a number assigned by the cable company to a particular customer’s home computer network.
The copyright holder has filed a lawsuit alleging that these unnamed defendants, including presumably your client, engaged in the illegal downloading of a pornographic movie through an unauthorized online file-sharing service. The defendants are listed only as John Does until the copyright holder learns their real names from your client’s cable company.
47 U.S.C. § 551(c)(2) precludes a cable company (your client’s Internet Service Provider or “ISP”) from disclosing its subscribers' personal information unless it notifies the subscriber and provides the subscriber an opportunity to prohibit or limit such disclosure. The letter to your client is the cable company’s way of obeying the law: the cable company will comply with the subpoena if it isn’t notified that your client is moving to quash.
Your client’s embarrassment is now understandable. He’s being accused of downloading pornography, something utterly contrary to his religious, moral and ethical views. Worse, he’s being sued for it. Worst of all, if the cable company complies with the subpoena and gives its name to the plaintiff, your client will become publicly named in a ‘porn lawsuit.’ No matter how open-minded a client and his family might be, this is hard to take.
The problem goes deeper than simply figuring out how to file a motion to quash without revealing your client’s name. Because computer science has progressed at a pace far faster than the legislature, copyright holders and alleged infringers are struggling to apply outdated law to never-contemplated technology. Legitimate copyright holders of music and movies often require the courts’ assistance to prevent infringement, but recent cases illustrate that pornography copyright holders have begun to use this lack of legal and technological clarity to their advantage, making copyright infringement lawsuits harder to fight.
Without assistance, your client will be forced to navigate the increasingly complex crossroad of technology and the law alone. In order to assist your client fully, you need to be familiar with both the legal concepts and the technology that makes cases like this possible. This article highlights areas of concern for defense attorneys facing a new wave of pornography copyright infringement litigation.
How the Technology Works
For those unfamiliar with Internet file-sharing programs, a brief primer on BitTorrent, currently the most popular of these programs and the one featured in a majority of the cases discussed in this article: BitTorrent is an Internet-based peer-to-peer file sharing program (the technological grandchild of services such as Napster and Grokster) that allows users to search for and download large files (i.e., movies, television shows, and computer programs) in relatively short time using the power of the masses. When a user searches for and selects a file to download, the software finds other users with the desired file – a process called swarming. As peers enter the swarm, they begin sharing pieces with one another (different subsets of the same large file), increasing the download speed for all users in the swarm (instead of downloading the whole file directly from a single user). See, generally, In re BitTorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765 (E.D.N.Y. May 1, 2012). Eventually, all of the users in the swarm have duplicate copies of the entire file on their home computers, built from pieces from every other user.
As part of the file-sharing technology, BitTorrent uses a “tracker” computer that tracks the pieces of the file being shared among various computers in a swarm in order to optimize download. In order to bring these lawsuits, the copyright holder uses this “tracking” feature to track its movie file on BitTorrent and identifies the IP addresses of those computers that are illegally downloading/sharing the copyrighted work over a period of time. To date, the software, methods, and evidence-handling of the tracking methods used by plaintiffs have never been reviewed or tested in court and, as described below, may be an area of attack for your client.
The Copyright Lawsuits
Once the IP addresses are collected, the copyright holder files a lawsuit in federal district court against the swarm of users, naming them John Does until such time that discovery might reveal their names. Depending on the court in which it is filing, the copyright holder may filter out those IP addresses that point to home computer networks located outside the court’s jurisdiction. The copyright holder can use “geolocation technology” to trace an IP address to a general geographical point of origin in order, for instance, to sue only those alleged infringers who are located in Arizona. Unfortunately, copyright holders don’t always use “geolocation” which leads to dozens if not hundreds of putative defendants being sued in a foreign, inconvenient forum.
By naming all of the IP addresses in a swarm as John Doe defendants in a single case, the copyright holder only has to spend a one-time $350 filing fee, a significant savings when suing numerous defendants. See, e.g., AF Holdings v. Does 1-1058, 12-cv-00048 (D.D.C. filed in 2012). For an extreme example, see Nu Image, Inc. v., Does 1-23,322, 11-cv-00301 (D.D.C. filed in 2011) - over twenty-thousand John Does named in a single suit. These mass infringement cases “result in lost revenue of perhaps millions of dollars [to the federal courts] (from lost filing fees) and only encourage plaintiffs in copyright actions to join (or misjoin) as many Doe defendants as possible.” K-Beech, Inc. v. John Does 1-41, 2012 WL 773683, at *5 (S.D. Tex. 2012). This doesn’t begin to account for the additional time and resource savings associated with avoiding individual lawsuits.
After the lawsuit is filed, the copyright holder files a motion seeking expedited discovery in order to discover the names of the defendants (Fed. R. Civ. P. 45). Once granted, the copyright holder sends subpoenas to the cable companies that manage the IP addresses with the purported goal of identifying the alleged infringers by name. The cable company provides notice to its customers and, if no motions to quash prevent it from doing so, releases the names of the customers to the copyright holder.
Unfair Litigation Tactics
In many of these pornography infringement lawsuits, once the copyright holder is armed with the names of the alleged infringers, it sends settlement letters to cut litigation short. These letters generally contain factual and legal inaccuracies designed to coerce the recipient into settling. The letters accuse the defendants of illegally downloading a pornographic movie, explain that there’s no viable defense because an Internet user has a duty to know of any infringing activity occurring on her home network, and encourage the defendant to settle or else be named in a federal lawsuit (and face statutory damages for copyright infringement plus attorneys’ fees). The settlement demand is often low enough to make settlement cheaper than hiring an attorney. A complaint recently filed in Abrahams v. Hard Drive Productions, Inc., Docket No. 3:12-1006 (N.D. Cal. Filed Feb. 28, 2012), alleged that a copyright holder’s counsel used intimidating tactics and oppressive demands to encourage settlement, demanded $3,400, and provided the alleged infringer with an unsigned memo containing purported legal analysis that was incomplete and slanted. See Millennium TGA, Inc. v. Comcast Cable Com, LLC, Docket No. 12-MC-00150-RLW, at fn. 8 (D.D.C. June 25, 2012).
Taking the AF Holdings case as an example, if all 1,058 John Does receive a similar settlement letter and, being conservative, only thirty percent settle rather than fight, the copyright holder still collects over $1,000,000 ($3,400 x 317 Does).
The Legal Framework
If your client chooses to fight, there are other good defenses. The copyright holder doesn’t always filter out IP addresses outside the jurisdiction and many of those John Does named must file motions to quash in inconvenient forums. This alone is an appropriate defense, though it creates a more expensive defense position when you’re forced to pro hac into a foreign jurisdiction to represent your client.
In the recent decision of In re BitTorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765 (E.D.N.Y. May 1, 2012), the court granted several motions to quash, focusing not on the technical requirements of the subpoena, but on whether the subpoena would produce anything valuable. The court found it incorrect to assume that “the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film” because an IP address provides only the location at which one of any number of computer devices may be deployed. Id. at *6.
This technological hurdle is one with which defense attorneys should be familiar. While the copyright holder is able to identify the IP address of the computer that used BitTorrent to download a protected movie, the copyright holder has a hard time bridging that secondary identification without extensive discovery – who was actually using the computer at the time of the download. A cable company may assign a single IP address to a customer, but the customer very often has a wifi router on their network, allowing numerous users to access the Internet through a single wireless connection at any given time. Given the majority of wireless users who may never have secured their wifi router with a password, it is even more unlikely that an IP address alone could lead back to the actual infringer. As the BitTorrent court found, “the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor, or interloper.” Id. at *8. The court also noted that the plaintiff’s claim that it could allege negligence against the owner of a Wi-Fi router who failed to password-protect the device used by an intruder “flies in the face of common sense.” Id. at fn. 3. Knowing how the technology works is the first step to defending these suits.
The biggest challenge faced by pornography copyright holders (and one that may be exploited by defendants) is the question of admissible evidence and the expense of trial. To date, none of the many John Doe pornography infringement cases have gone to a full trial. This may be due to the copyright holders’ concerns about negative public exposure and the inability to answer detailed discovery or present competent, admissible evidence of infringement. The Daubert standard may make inadmissible any evidence regarding the collection of BitTorrent IP addresses, the qualifications and methodology of the collection methods, and the independent evaluations of the evidence to prove infringement by particular users. Without engaging in significant discovery depositions of each individual John Doe, a copyright holder might not be able to maintain its burden of proof at trial.
Courts are also split over the propriety of joining so many defendants in a single lawsuit. At issue is whether defendants who are part of the same swarm are sufficiently related to constitute being part of the “same transaction, occurrence, or series of transactions or occurrences” for the purposes of permissive joinder under Fed. R. Civ. P. 20(a)(2)(A & B). “The bare fact that [John] Doe clicked on a command to participate in the BitTorrent Protocol does not mean that they were part of the downloading by unknown hundreds or thousands of individuals across the country or across the world.” Hard Drive Prods., Inc. v. Does 1-188, 809 F. Supp. 2d 1150, 1163 (N.D. Cal. 2011). Even assuming that the John Does are the actual infringers, the assertion that defendants were acting in concert rests upon a thin reed. See generally Raw Films, Ltd. v. Does 1-32, 2011 WL 6840590, at *2 (N.D. Ga. Dec. 29, 2011) (stating that the “differing dates and times of each Defendant’s alleged sharing do not allow for an inference that the Defendants were acting in concert.”). In a District of Maryland case, the court found joinder improper because the transactions of each defendants were not “transactionally related” since the only commonality between the infringers was the work at issue and the time period between the alleged transactions reinforced the idea that defendants were not sharing files such that they were engaged in the same transaction or occurrence. SBO Pictures, Inc. v. Does 1-57, 2012 WL 141523 (D. Md. Apr. 20, 2012).
As the court observed in Pacific Century Int’l, Ltd. v. Does 1-37, 2012 WL 1072312 (N.D. Ill. Mar. 30, 2012), each defendant in a mass litigation suit would have the right to be present at every other defendant’s deposition, a thoroughly unmanageable and expensive ordeal; and every pro se defendant, unable to e-file, would be required to serve every other defendant with a copy of every pleading at substantial cost.
Copyright for Pornography
A separate, but interrelated issue is whether pornography is in fact even entitled to protection against copyright infringement in the first place. Copyright protection in the United States was “effectively unavailable for pornography” until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854–55, 858 (5th Cir. 1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of “obscene materials,” such as the films at issue there, and rejecting the defendant's affirmative defense of “unclean hands”); see also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982) (stating, in the context of copyright infringement of a pornographic film, that “[p]ragmatism further compels a rejection of an obscenity defense” because “obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether”). Congress has never addressed the issue by amendment to the Copyright Act and it remains unsettled in many circuits.
Being an Advocate Means Knowing the Landscape
Many courts evaluating these cases have shared the concern that adult film copyright holders are preying on an individual’s fear of being publically charged with downloading pornographic films. See, e.g., Pacific Century, 2012 WL 1072312, at *3 (“the subscribers, often embarrassed about the prospect of being named in a suit involving pornographic movies, settle”); Digital Sin v. Does 1-176, 2012 WL 263491, at *3 (S.D.N.Y. Jan. 30, 2012) (“This concern, and its potential impact on social and economic relationships, could compel a defendant entirely innocent of the alleged conduct to enter an extortionate settlement”). These considerations are not present in other infringement actions involving, for example, popular music downloads. See In Re Aimster Copyright Litig., 334 F.3d 643, 645 (7th Cir. 2003) (“Teenagers and young adults who have access to the Internet like to swap computer files containing popular music…The swappers…are ignorant or more commonly disdainful of copyright.”). Pornography copyright owners have been able to “use the office of the Court as an inexpensive means to gain the [John] Doe defendants’ personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down John Does.” Raw Films v. Does 1-32, 2011 WL 6182025, at *2 (Va. Cir. Oct. 5, 2011).
When your client comes to you seeking help in this kind of case, your assistance will be part counselor, part lawyer, and part technology specialist. Being familiar not just with the legal concepts, but also with the emerging technology can only help your client reach a reasonable result.
Erik G. Moskowitz
Gallagher, Callahan & Gartrell, P.C.
214 N. Main St.
Concord, NH 03301