May 06 2012

Courts Denounce Copyright Lawsuits Based Solely On IP Address

Common sense is finally coming to copyright troll lawsuits. As I have reported on before here on this site, the adult film industry has been filing lawsuits all around the country against folks whose IP address was registered to them when that IP address was used to download a pornographic movie. Where the plaintiff did not have a name attached to the address, they would ask the court to issue a subpoena to the ISP that the IP address used for contact information of the IP address holder. The IP address holder would then be named in a federal copyright lawsuit seeking tens of thousands of dollars in damages where they would try to embarrass the defendant by listing the titles of the movies they allegedly downloaded.

But two federal judges have had enough and have issued rulings that could be the beginning of the end of these extortionate lawsuits. First on April 29, District Court Judge Harold Baker of the United States District Court for the Central District of Illinois (which covers Chicago) The plaintiff (an adult film company based in Canada) was looking for personal information connected to the IP addresses of the people who allegedly distributed adult videos. Baker said he was not going to support a “fishing expedition” for subscriber data without more evidence. He pointed out:

The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment

A few days later, New York chimed in with a similar ruling in K-Beech, Inc. v. John Doe. Magistrate Judge Gary Brown of the Eastern District of NY (covering Brooklyn, Queens, Staten Island, Nassau, Suffolk, Westchester, Orange and Putnam Counties) did not pull any punches in his 28 page ruling. First he noted that this case was part of “a nationwide blizzard brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent.” He then noted how when earlier courts had granted the subpoenas, the film companies used that information to pressure IP holders to settle by embarrassing and harassing them:

This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the 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 the John Does.

What particularly troubled the judge was that one of the John Does who moved to quash the subpoena and dismiss the lawsuit had unequivocal proof that he was at work at the time the movie was allegedly downloaded from his home computer but the plaintiff was unwilling to see the evidence and rejected the Doe defendants offer to have unfettered access to his home computer, work computer and work records to establish his innocence. Instead, the plaintiff’s “negotiator” said he would accept $2,900 in settlement as the defendant would still have to hire a lawyer and face a lawsuit about downloading a film called GangBang Virgins. To his credit, he did not settle and instead filed the motion.

The court denied the plaintiffs request for the names, addresses, phone numbers and email addresses of the IP holders because it feared that it would only be used to continue the abusive litigation tactics described by the above defendant. It also said that by filing these massive actions naming hundreds upon hundreds on unconnected IP holders, the plaintiffs were avoiding paying the proper filing fees. Finally, noting that 61% of homes now used wireless routers, there was simply no evidence that the name attached to the IP address was the person who downloaded the video.

I have to say that counsel for the plaintiff did not help his clients’ position. Rather than just admitting what these lawsuits were all about -shaming people into paying – they filed a 62 page response to John Doe’s dismissal motion which did not address any of the points he raised about his attempts to prove his innocence. Instead the papers, which the judge described as “rambling papers that often lapse into the farcical,” tried to paint the plaintiff as artists who were merely trying to protect their works of art like another entertainment industry. The papers also said that the ultimate goal of the lawsuits was to protect children because if everyone paid every time a move was downloaded, then parents would know if their kids were downloading adult movies. The court noted that since the president of the plaintiff corporation K-Beech was Kevin Beechum, who in the 1990s testified as a witness for the Federal Government where he admitted firebombing adult entertainment shops to extort money from their owners and since his company sold many movies that involved “Teen porn” it was “difficult to give them the moral high ground.”

The court dismissed the lawsuits, denied the subpoenas and then went one step beyond – requiring the plaintiffs that all future actions be filed against only ONE John Doe at a time by payment of the $350 filing fee. IT was this ruling that signaled the death knell to these lawsuits. Since very few adult film makers bother to register their films with the copyright office, they cannot get legal fees as a result of winning the lawsuit. So forcing them to spend $350 per defendant is going to be sufficiently cost-prohibitive to continuing these abusive tactics.

It is very hopeful that these rulings, particularly Judge Brown’s latest decision, will send a clear message to the copyright trolls out there who have been using litigation and the threat of litigation to get innocent folks to pay exorbitant amounts in settlement. Hopefully folks who receive these lawsuits will do a little research and find out how courts have been treating the claims before forking over thousands of dollars unnecessarily.

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