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 a bit of a Catch-22 if you don’t know who the defendants are. At this point, you see, the defendants have no idea they’ve been sued, so they can’t pipe up at this point and oppose the plaintiff’s motion. Besides, the motion seemed ministerial in nature, not substantive. Without any opposition, courts would grant the motion without question.

Wait a Minute….

But even then, there was a trend against such rubber-stamping. Courts started to realize that they were being used as clearinghouses to find out the identities of potential defendants. The chances that all 10,000 defendants actually resided in the jurisdiction, and were, therefore, subject to being haled into that court, were pretty small (infinitesimally small in the case of Washington, D.C.), and this raised a due-process problem. Judges started to question the ratio of defendants (and work for the court’s staff) to the filing fees (just one $350 fee for all 10,000 defendants) and wondering if this was a great use of scarce judicial resources. Judges started to wonder if there was another side to the story that they weren’t hearing. One court even appointed a kind of guardian ad litem to argue on behalf of the anonymous (and still ignorant) defendants).

Then, there was a growing understanding that IP addresses aren’t all that reliable a means of identifying wrongdoers. As I mentioned in my previous posts, all kinds of things can go wrong. The plaintiff’s IP or time information may be incorrect; the ISP may make a mistake retrieving the information; the ISP’s subscriber records would be out-dated or otherwise mistaken. These mistakes my not happen all that frequently, but when there are literally 10,000s of defendants, they’re going to happen a lot.

On top of that, once you’ve  correctly identified the subscriber, you haven’t necessarily identified the defendant. The subscriber is just the one paying the ISP bill. He or she may not be the one who actually downloaded the content. And paying the bill doesn’t make one secondarily liable because (1) the payor doesn’t necessarily benefit financially from the download, and (2) the payor isn’t necessarily aware that the internet service is being used for downloading that particular work.* The actual infringer could be a family member, guest, a neighbor** or even someone sitting outside in a car sucking down your unsecured Wi-Fi signal.***

* A lot of rights holders appear to assume that there is a rebuttable presumption that the subscriber is also the downloader. I don’t see how any of the burden of proof shifts to the defendant.

** It never occurred to me that I needed to protect my personal household Wi-Fi signal, until one day, several years ago, I noticed a strange playlist on iTunes. It belonged to a new neighbor (the house next door is rented to university students, so there’s some turn-over), who unwittingly let her iPod be shared on our network (while not so unwittingly latching onto our internet service!). Her taste in music wasn’t so bad for a freshman. I had been wondering why our service seemed so slow!

*** Or even a secured Wi-Fi signal. For $90, you can get a device that will hack into most secured Wi-Fi signals. There are defenses against this—usually some form of VPN—but they’re pretty elaborate for a consumer.

The Piranha Brothers’ Other Other Operation

Finally, a new realization started to grow in the minds of the judges. They weren’t just clearinghouses; they were tools in a kind of protection racket. Most (but not all) of the cases involved pornographic movies.*

* A fact I didn’t know when I first blogged about the West Coast case, which involves one of the more notoriously titled pornographic features. If I had known, I surely would have punned a lot more.

The way it worked was that, using the court’s subpoena power, the copyright owner would find out the contact information of the subscriber associated with the IP address. Then they would send a letter offering to settle the case for a few thousand dollars—far less than the cost of defending oneself. The letter would mention, as though in passing, that the next step in the legal process would be to identify the subscriber as a defendant in the case publicly. Most recipients will connect the dots: they’re going to be identified as a consumer of pornography. The beauty of the scheme is that the defendants do not need to be accurately identified for it to work. Shame would be a sufficient motivator.

There is nothing really wrong about this. Settling cases is something courts generally approve of, and usually it doesn’t matter whether the case was settled before or after the defendant was identified. Settled is settled. Where you run into trouble is if you sue but aren’t really serious about it. But again, the rights holders are stuck. They can’t settle until they sue, so they have to sue, even if they hope to settle. Even so, if you’re suing to force a settlement, you still need to prepare as though for a real lawsuit.*

* True, you can always voluntarily dismiss your lawsuit with impunity before the defendant answers your complaint, but after that, you need either the court’s or defendant’s permission. In the usual course of things, courts and defendants are only too happy to let you dismiss, but not always. I’ll discuss below one instance where the plaintiff found itself with a sticky situation.

These growing realizations came together recently in a Magistrate’s Report & Recommendation* consolidating four pornography Bittorrent cases in the Eastern District of New York (basically Long Island). Faced with a typical motion for expedited discovery, the magistrate recommended (1) that all of the defendants be dismissed (with a right to re-file) except the “John Doe No. 1” in each case; and (2) as to that one remaining defendant, the plaintiffs could proceed with sending the subpoena to the ISP, but under heavy restrictions.**

* Magistrates are not full judges under the federal system, but judges often refer specific issues to them. The magistrate’s ruling does not, at first, have the force of a judicial order. Instead, it’s just a recommendation to the referring judge about what order should be issued. The parties get 14 days to object to the recommendation, which can lead to another round of briefing. Judges, however, tend to accept magistrates’ recommendations, whether objected to or not.

** In addition, the magistrate recommended that all of the defendants in one of the cases be dismissed because the plaintiff couldn’t prove it owned the copyright in the pornographic film in question. This case can be refiled once the plaintiff obtains the registration for that copyright.

Next time, we’ll examine how the Magistrate reached these rulings, and his rather extreme skepticism of what motivates certain rights holders.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.