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»
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»
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»
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»