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 between a judicial opinion and the judge’s personal beliefs.

Of course, you can’t guard against biases that you aren’t aware of, and we all know from our own personal experiences that we have (and have acted on) biases that we didn’t know we had. But is a judge going to be unaware of a bias against the pornography industry? Not very likely. To the contrary, as you read these opinions, you can tell that the judges are quite aware of the unsavory nature of the industry at issue. So their bias guard is going to be up and ready.

One place where bias might form is with the question of whether pornography deserves copyright protection at all. The Magistrate in In re BitTorrent Adult Film certainly thought it was an open question, even though it really isn’t. It would certainly resolve the judge’s human dilemma of having to rule in favor of an industry that neither the judge nor really anyone else respects. But, assuming the issue is adequately briefed by the lawyers (which, alas, isn’t always the case), the judge isn’t going to let his or her bias replace actual legal authority. Besides, a ruling against BitTorrent plaintiffs on this basis won’t affect the non-pornographic rights holders.

The Consequences of Outing the Wrong Person

Where pornography matters, I think, is how it throws into sharp relief the consequences of “outing” the defendants. Courts blithely regard being named as a defendant, even in meritless lawsuits, as a cost of citizenship* and assume that most people understand that being so named doesn’t mean you did the bad acts.

* Well, except non-citizens can be defendants. Perhaps it’d more accurate to say it’s a cost of democracy—anyone can sue anyone else.

What makes BitTorrent cases different is the potential for mistaken identity. It’s one thing to accuse someone of a bad act, but later be unable to prove every element necessary to establish liability. You at least know that the defendant did something. We can say to ourselves that, if you do those things, you shouldn’t be surprised if someone sues you (even if what you did was, in the final analysis, legal). With the BitTorrent cases, there’s a real chance that a named defendant is completely innocent. The summons that the process server hands you could come completely out of left field. And it will be a long time before you can show that it wasn’t you.

Pornography raises the stakes because viewing pornography is an immoral, but not illegal, act, and it’s done in private. No one is going to say: “Wait, Ginger couldn’t have run over that man with a cement mixer. Ginger can’t even drive a car!” Even if you have a reputation for moral rectitude, even if you’re 80 years old, it doesn’t matter.* If you have an internet connection, you are a potential consumer of pornography, and proving that negative is pretty hard.

* It doesn’t help that plaintiffs aren’t very willing to drop defendants who don’t pass the smell test, like elderly women accused of downloading Snoop Dogg.

Imagine you’re interviewing for a job, and the background check shows you’d been sued for illegal downloading, though the lawsuit was later voluntarily dismissed. Now imagine if the work in question was Teenage ***** *** **** Wh*res (or whatever).* Maybe the potential employer take the trouble to ask about it, and maybe the potential employer believes your explanation—or, maybe not.

* Or, worse, an online dating service.

A Proposal: Anonymity + Fee-Shifting

But how else are rights holders supposed to enforce their rights? For a variety of reasons, suing the intermediaries is impracticable, so that leaves suing the customers. There’s no other way to sue the customers other than to find out the IP addresses and times associated with a download, and subpoena the ISP for the subscriber information.* It’s imperfect, but what in the legal system is perfect? Plaintiffs don’t need to be perfect to win; they just need to be slightly better than 50% perfect.

* It won’t be long before even this method becomes impracticable. BitTorrent happens to be vulnerable to this method because it has to track the IP addresses of the computers participating in the “swarm.” But there are other systems, not quite as convenient as BiTorrent, that don’t track this information. Also, as the internet gets faster, “swarming” will become less necessary.

The obvious solution to this conundrum, which I’ve seen used only a handful of times, is to permit defendants in these cases to proceed anonymously, at least until such time as the correctness of their identities has been established. The plaintiffs would be told the defendant’s name and address, just enough so that they can be served with process, and a protective order would forbid (on pain of contempt) disclosure of that information.* This would remove the unfair advantage that plaintiffs have while letting them actually proceed against defendants.

* Although protective orders aren’t perfect, sophisticated litigants rely on them all the time to protect important trade secrets and other proprietary information that must be disclosed in litigation but can’t be disclosed to the public at large.

The main reason this solution is hardly ever used is that neither side of a case has reason to suggest it. The plaintiffs obviously want to put as much pressure on the defendants as possible. The defendants are hopeful that they can remain completely anonymous, such that they can’t even be served with process, and thus escape the bother of litigation entirely. The first time I ever saw a court use this solution, it did so sua sponte.

Those who are misidentified and must spend money proving as much should be protected. Normally, defendants are responsible for paying their legal costs, but the Copyright Act does have a fee-shifting provision, which Courts could use to force plaintiffs to reimburse mis-identified defendants. This would force plaintiffs to put their money where their mouths are: they would drop unlikely defendants faster and do a better job identifying defendants. It’d increase the cost of enforcement, but not by that much. Innocent parties shouldn’t be out of pocket.

West Coast in Georgia: A Microcosm of What Can Go Wrong

Remember the West Coast cases that I blogged about way back before I knew it involved porn? The cases were mostly drummed out of Washington D.C. on grounds that the anonymous defendants weren’t very likely to be subject to the jurisdiction of Washington D.C. The question that remained was whether West Coast would re-file the cases in more geographically relevant courts.

The answer so far is “Sort of.” West Coast filed some mass-defendant john-doe cases in Louisiana, Texas, Missouri, presumably based on some IP-based sense that the anonymous defendants might possibly perhaps reside in those states and judicial districts. Presumably West Coast never found out the identities of these defendants via the proceedings in Washington, D.C. Those cases appear to be moving forward satisfactorily for West Coast, since the courts have so far all granted West Coast’s ex parte motions for expedited discovery. There are some motions to quash and (more important) motions to sever that have been filed by some of the anonymous defendants.

In Georgia, West Coast started suing known defendants by name*, usually several at a time, which ran into the same joinder problems we discussed earlier. Some of the defendants appear to have paid up and settled. When the courts started severing the cases, however, West Coast started to dismiss defendants voluntarily without prejudice (i.e., so they could be sued again) and apparently without settlement.

One of the defendants, however, was angry enough not to accept the voluntary dismissal. She asked the court to condition the dismissal on payment of her legal fees. According to this defendant, she was incorrectly identified by her former ISP, and told West Coast’s lawyers so. She used to live at the physical address associated with the IP address, and she used to be a subscriber of the ISP, but that was many years ago. Apparently, the ISP never updated its records.

On top of that, she apparently got confused by the waiver of service and thought that it meant she didn’t need to formally answer the complaint. Almost as soon as it could, West Coast moved for a default judgment, which was a very aggressive thing to do, especially when one is in actual correspondence with the defendant. That forced the defendant to move to set aside the default, which incurred legal fees, which probably made the defendant a little cranky.

The court did not quite grant the relief she requested, but it did the next best thing (which wasn’t good enough for her, but there’s no pleasing some people). It told West Coast that, if it did sue the defendant again, it would have to pay the legal fees she had previously incurred. Practically speaking, the dismissal was now with prejudice (it’s a little hard to miss the judge’s message there).

As is typical in these cases, West Coast would not even admit to the possibility that a mistake could have been made. It suggested, without really any basis, that the defendant might possibly maybe have knowingly let others perform illegal downloads with her subscription—i.e., contributory infringement, a theory not present in West Coast’s complaint.

The defendant’s counsel was also pretty aggressive, and the judge was pretty clearly annoyed by that. But he must nevertheless bought the defendant’s story, because the easy thing to do would have been simply to grant plaintiff’s motion to dismiss the case. Instead he conditioned the dismissal in a way that make re-filing pretty unlikely. Despite the defendant’s whinging, I’d call that about as good a victory as a defendant is going to get under the circumstances.

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.