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You’re No Fung Anymore: There Really Is Such Thing as Red Flag Knowledge in Copyright Law
March 28, 2013 by Rick Sanders | Category: Blawg, Blog | Tags: BitTorrent cases, copyright, DMCA, inducement, internet, safe-harbor, secondary liability, Veoh
Also, There Really Is Such Thing as Copyright Inducement
Hot on the heels of the new and improved opinion in the Veoh case (discussed last time), we also have Columbia Pictures Industries, Inc., et al. v. Gary Fung & IsoHunt Web Technologies, Inc., another important 9th Circuit decision construing the major DMCA safe harbors. We’ve actually discussed the case before because it was—and as far as I am aware—the only case in which a service provider was found to have had enough “red flag” knowledge to be deprived of the DMCA safe harbor.
The rare yellow-bellied sapsucker is a close relative of the even rarer red-flagged sapsucker. Photo by Phillippe Boissel, under Creative Commons license.The Red-Flagged Sapsucker
I’ve said previously that “red flag” knowledge will be found only in extraordinary situations, and nothing since then has changed my mind. The problem is that “red flag” knowledge is clearly objective knowledge (in contrast to the subjective nature of actual knowledge). Lawyers are actually used to these standards, more classically stated as “knew or should have known.” In many cases, knowledge requirements are important, but even so, we don’t like to limit them to purely subjective … Read More»
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The Laws, They Changed Them? Maybe Pornographers Are Ruining it for Everyone
But Not for the Reason You Think
In the first part of this series, I asked whether pornographers are ruining it for everyone. Not all of the BitTorrent plaintiffs are pornographers, of course, but most estimates I’ve seen show that more of them are. A concern that a rights holder might have is that the strategy of suing mass numbers of anonymous BitTorrent defendants is already an aggressive strategy and requires a lot of cooperation from the court. With the addition of pornography to the mix, courts might find reasons to interfere with the process enough to make the strategy unprofitable for non-pornographers.
Not Industry Bias
I think pornography might make a difference (i.e., the answer to the question I posed might be “Yes”), but not necessarily because judges are biased—even unconsciously—against the pornography industry. The funny thing about judicial bias is that it pretty much has to be unconscious to have an effect. Judges are well aware that they are supposed to be unbiased—it’s baked right into the job description—and with some unfortunate exceptions, they do a good job of ignoring their personal biases. Judges are used to making unpopular rulings, and most people can distinguish … Read More»
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Swarming the Defense: BitTorrent, Copyright and an Obscure Procedural Doctrine
Unappreciated Joinder Is Playing a Decisive Role in BitTorrent Cases
Last time, I said that the real action in these BitTorrent cases (including the one we’re discussing, In Re BitTorrent Adult Film) is “joinder,” where multiple parties are placed on the same side of the “V” in a court case—in the BitTorrent cases, sometimes hundreds, thousands or even tens of thousands of parties are placed on the defendants’ side of the “V.” A plaintiff can try to “join” as many defendants as it wants, but courts have the power to split the defendants off into their own cases, a process known as “severance.”
It’s a relatively dull topic*, but it’s proving pivotal in the BitTorrent cases. Cases in which the defendants are severed are almost never re-filed.** At first, this might seem strange. The cases are not dismissed permanently. The plaintiffs just need to re-file against the defendants as separate, individual cases. And pay the $350 filing fee for each case.
* Which is fine with me because I’m a HUGE civil procedure nerd.
** Based on my own observations and anecdotal evidence. I’m not sure if anyone has been tracking all of these cases.
All for … Read More»
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Are Pornographers Ruining it for Everyone? Identifying and Outing Anonymous Online Copyright Infringers
Judges: Courts Aren’t Litigation Clearinghouses
Last summer, I started to blog about mass-defendant bittorrent cases pending in Washington, D.C., some of which involved over 10,000 anonymous defendants. Since the plaintiffs didn’t know who the defendants were, but they did know to IP address to which a bittorrent was sent, they would sue the defendants as “John Doe,” then ask the court for permission to send subpoenas to the defendants’ internet service providers. The subpoenas would ask for the contact information of the subscriber who was assigned that particular IP address at that particular time.* In theory, the subscriber would be your defendant, or at least someone who knew the real defendant (e.g., a family member).
* Since most consumers are dynamically assigned an IP address by their ISP for each internet session, and that IP address will likely change from session to session, you need to know not only the IP address but also the exact time the IP address was being used.
Recall that the first hurdle that the plaintiff must clear is a request for early discovery. Normally, discovery in federal court can’t start until there’s been a conference among the parties’ lawyers, which is … Read More»
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The Expendables 2: Revenge of the Obscure Venue Statute
How a Switch in Time Saved 23,322 John Does (Their Identities, for Now, at Least)
In a series of posts a couple of weeks ago, I discussed an important decision out of the West Coast case* regarding anonymous internet speech. In that decision, U.S. Judge Kollar-Kotelly refused to stop (“quash”) subpoenas that had been issued to ISPs for purpose of identifying 5829 anonymous defendants, who were accused of downloading the plaintiff’s movie using BitTorrent. I mentioned in those posts that this was one of several such BitTorrent-movie cases pending in the District of Columbia. A few of those other cases belong to Judge Wilkins, and Judge Wilkins has just done a remarkable thing in a case involving The Expendables: on his own volition, he has refused to let such subpoenas even issue.
* I think I sometimes accidentally called this the “Blue Coast” case. Blue Coast is a better name than West Coast, but I should nevertheless try to get it right. Something I didn’t realize about West Coast when I wrote those posts is that, unlike most of the other cases, the movie at issue is pornographic. Perhaps that’s why the anonymous defendants were so … Read More»
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The Thrilling (Anti)Climax of WestCoast Anonymity Case
Why the Judge’s Decision Was Right (but Feels Wrong)
In my last two posts, I described the general contours of the First Amendment right to speak online anonymously, the steps a plaintiff must take to reveal an anonymous defendant’s identity, and how a defendant can try to assert those First Amendment rights. Keep the principles, problems and paradoxes that I described in my last two posts in mind as we discuss Judge Kollar-Kotelly’s opinion, and as I explain why I think she was correct, and yet I’m dissatisfied with the result.
If you’ve been keeping up so far, you know that the filmmakers’ first step was to file a lawsuit against a number (5829!) of “John Does.” Then they asked the court for permission to serve subpoenas earlier than you’re normally allowed–because there can’t really be a case without the subpoenas. They did that, too, and the court said OK. Then they duly issued and served the subpoenas, many of which were arguably defective, to the various major ISPs. And some of the ISPs responded quickly with customer identities*, and others brought motions to “quash” the subpoenas. In addition, many of the defendants, upon learning of the subpoenas, … Read More»
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The First Amendment Right to Speak Online Anonymously
And the Legal Trail Plaintiffs Can Follow Through the Internet to You
In my last blog entry, I said I wanted to discuss this opinion, issued out of West Coast Productions Inc. v. Does, in which some independent filmmakers sued 5829 anonymous defendants for allegedly downloading their films using BitTorrent, in violation of copyright law. This opinion is the culmination of the filmmakers’ (more or less* successful) attempt to identify the anonymous defendants, some of whom resisted pretty strenuously, so they could be named and served with process. I explained the general contours of the First Amendment right to speak anonymously, and the interests that had to be balanced. Now I want to put these rights into some real-world context by discussing the steps the filmmakers took to learn the identities of the defendants.
* The filmmakers won the right to learn the defendants’ identities, but they still have a few procedural hurdles, which are proving troublesome.
The filmmakers in this case found themselves with a pretty typical problem: they knew the IP addresses that were used in carrying out the allegedly wrongful act, but that they weren’t enough to identify the actual person. It’s usually fairly easy to … Read More»
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The First Amendment Right to Anonymous Online Speech
And its Limtits… Explaining the Decision to Disclose All Anonymous Defendants’ Identities in Blue Coast Productions v. Does
While I was literally “between offices” last month, this decision was handed down in a high-profile case, West Coast Productions, Inc. v. Does, pending in United States District Court (i.e., trial-level court) for Washington, D.C. It is one of three cases pending in that court brought by independent filmmakers against thousands* of ordinary citizens who are accused of downloading movies using the BitTorrent streaming protocol. The filmmakers say that they can tell what movies were downloaded and to what IP address, but (for reasons I’ll explain later), that’s not enough information to find out exactly who did the downloading. For that, they need information being held by the defendants’ various ISPs. They asked the court for permission, sent out civil subpoenas, a lot of people objected, and motions were filed. In her decision, Judge Colleen Kollar-Kotelly said that the filmmakers could find out what they wanted to know from the defendants’ ISPs.
* Literally. There are 5829 defendants in this one case alone.
As some of you know**, Internet speech is (along with the Stored Communications Act) an area of special … Read More»
