Posts Tagged ‘judge gary brown’

I Got Sued By a Copyright Troll Part V: Judge Finds IP Address Does Not Identify Person

Monday, 07 May, 2012 06:00 Written by Aaron B. Thalwitzer 0 Comments
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The BitTorrent lawsuits (otherwise known as copyright troll lawsuits, often involving porn-related plaintiffs), have been smacked down again. I’ve spoken about these cases many times before, including the basics of pre-suit strategy, defenses both procedural and on the merits, and even the discovery shenanigans that go into such cases.

Those trolls just got smacked down. New York Judge Gary Brown spelled it out in a 26-page order dated May 1, 2011. I highly recommend reading the entire order. It’s a great read and provides an outline for other courts to deal with the onslaught of copyright troll litigation. Judge Brown recites some of the factual defenses presented by defendants:

The factual defenses presented are vastly different and highly individualized. One movant, John Doe #16 has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. John Doe #10 represents that downloading a copy of this film is contrary to her “religious, moral,ethical and personal views.” Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.

(internal citations omitted).

Judge Brown also found that since a single IP address could be used by many different computers, the trolls’ quest for names associated with IP addresses disingenuous:

An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones . . . Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function here the purported illegal downloading of a single pornographic film than to say an individual who pays the telephone bill made a specific telephone call.

Judge Brown notes that different members of the same household could additionally have performed the alleged downloads, as well as neighbors or passersby (if the wireless routers were unsecured). Citing a case from just a few months ago, the Court chastised counsel for their extortionist practices:

The Court is concerned about the possibility that many of the names and addresses produced in response to Plaintiff’s discovery request will not in fact be those of the individuals who downloaded “My Little Panties # 2.” The risk is not purely speculative; Plaintiff’s counsel estimated that 30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material. Counsel stated that the true offender is often the “teenaged son … or the boyfriend if it’s a lady.” Alternatively, the perpetrator might turn out to be a neighbor in an apartment building that uses shared IP addresses or a dormitory that uses shared wireless networks. This risk of false positives gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading “My Little Panties # 2.”
Digital Sin, Inc. v. Does 1-176, — F.R.D. –, 2012 WL 263491, at *3 (S.D.N.Y. Jan. 30, 2012).
Other courts have found that the litigation tactics indicate:
[T]hat 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.” Raw Films, 2011 WL 6182025, at *2.
The Judge sorted through the BS and found that all they trolls really wanted was a name, someone to threaten and extort and from whom they could make a few thousand dollars.

Judge Beach labels mass-BitTorrent lawsuits a “waste of judicial resources” and recommends that other judge do likewise. Lastly, Judge Beach also found that the “swarm” joinder of unnamed defendants violated Rule 20, further wasting judicial resources and improperly avoid paying filing fees.

The Court granted subpoenas to John Doe 1 only in each of the cases and recommended that each John Doe be filed as a separate lawsuit in the future. If the severance recommendation become the rule of law nationwide, we would likely see the end of this type of copyright troll. The filing fees aren’t worth it for them.

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