BitTorrent allows its users to download and view movies and other media without paying for the content. When a major motion picture is released, it is often freely shared with hundreds of thousands, and sometimes millions, of BitTorrent users within a few days, thereby depriving the makers and distributors of substantial revenue. To the extent these movies or media are copyrighted, their free downloading through BitTorrent is copyright infringement.
BitTorrent users make files on their computer publicly available to other BitTorrent users over the Internet. A first sharing of a particular file is called the “seed.” Other BitTorrent users (“peers”) can then request the file over the Internet and begin downloading the file. Since a large number of peers do this at the same time, the users seeking to access a particular file are referred to as a “swarm.” As each peer downloads portions of a seed file, those downloaded portions are also made available to other peers in the swarm. BitTorrent electronically enforces reciprocity through “pipelining,” where every user that is participating in a torrent maintains a continuously refreshed queue of requests for bits of files. None of the active users’ IP connections remain idle after any a portion of a file is downloaded. BitTorrent structures its file sharing protocols so that peers that offer little or nothing to a torrent will receive little or nothing from that torrent. Each user of BitTorrent downloads a media file in discrete segments, from many different users sending bits of files directly to and from each other. This allows BitTorrent to act as a very efficient means of transferring large data files. BitTorrent does not store any of these files on centralized servers.
The only practical means for a copyright holder to enforce its copyright against persons that download copyrighted works through BitTorrent is to obtain an injunction against end users that download the work, and to also seek monetary damages against the end users. The identity of an end user is not readily available through BitTorrent, but technological means are available to determine the Internet Protocol (“IP”) address through which bits of a file were transmitted. The copyright holder will not know the identity of the person or persons associated with that IP address, of course, unless the Internet Service Provider (“ISP”) associated with the IP address provides this information. To gain this information, copyright holders bring copyright infringement lawsuits against unknown “John Doe” defendants, and use the court’s subpoena power to require an ISP to disclose the identity of the IP account holder associated with a particular IP address.
These enforcement procedures have been used, on limited occasions, by the producers or distributors of mainstream movies and television shows. Far more commonly, “John Doe” lawsuits are filed by the holders of copyrights on pornographic material. In recent years, the most aggressive enforcer of copyright by these means has been Malibu Media, LLC, which holds registered US copyrights on a number of pornographic films. It has filed thousands of lawsuits in federal court, including over five hundred lawsuits in the US District Court for the District of Maryland. In each of its lawsuits – all of which are substantively identical to one another — Malibu Media asserts that an unknown John Doe has infringed copyrights that Malibu Media has registered for its pornographic works, by downloading and copying bits of these works through BitTorrent. Malibu Media alleges that each John Doe defendant is a “persistent infringer” of its copyrights, and that it does not know the identity of the BitTorrent subscriber that has downloaded and copied its copyrighted content, but knows that somebody has done so through the Internet Protocol (“IP”) address listed in the complaint. At the same time that it files a lawsuit, Malibu Media also files a motion seeking the court’s permission to serve a subpoena on the ISP through which the content was downloaded, alleging that it needs this information in order to learn the defendant’s true identity.
Many federal courts have been reluctant to allow Malibu Media or other plaintiffs to serve subpoenas on ISPs early in the litigation process, and have expressed skepticism of the use of IP addresses to identify file sharing defendants in cases involving pornographic films. Some trial-level courts have held that an IP address alone is insufficient to establish the identity of a defendant that can properly be sued. Courts have expressed concern that, when a copyright holder obtains the identity of the IP address account holder from an ISP, the copyright holder could threaten the IP account subscriber with being publicly named in a case alleging that the subscriber illegally downloaded pornographic material, unless the subscriber makes a substantial monetary settlement payment. One federal judge in New York stated, in a published opinion:
The relatively small group of lawyers who police copyright infringement on BitTorrent have customized the concept of extracting quick settlements without any intention of taking the case to trial…. Particularly troubling for courts is the high probability of misidentified Doe defendants (who may be the bill-payer for the IP address but not the actual infringer) settling a case for fear of the disclosure of the allegations against them or of the high costs of litigation.
John Doe ISP subscribers and their attorneys have argued that subscriber identification information revealed by an ISP in response to a subpoena may not actually identify, with any certainty, the person who illegally downloaded the plaintiff’s copyrighted works. The person that downloaded content through a particular IP address could be the ISP subscriber, or could be another member of the household, or any number of other individuals who have direct access to the subscriber’s Wi-Fi network. The subscriber’s internet connection could have been used by another person at the subscriber’s location, or by an unknown party that obtained access to the subscriber’s internet connection without authorization.
Of the over 200,000 cases filed against John Doe defendants in the United States, only a small handful have resulted in final judgements. John Doe lawsuits almost always end with voluntary dismissal by the plaintiff. There is no way to know, from public court records, how many of the dismissed lawsuits were dismissed by Malibu Media after receipt of a settlement payment from the John Doe defendant, and how many were dismissed by Malibu Media because it decided not to further pursue the particular defendant for reasons other than a monetary settlement. Malibu Media has stated, in filed court papers, that it expects that about one-third of its lawsuits will be voluntarily dismissed after it receives the John Doe identity from the ISP. It also claims that the company does not pursue lawsuits when it finds that John Doe is active duty military, or has insufficient assets to pay a judgment.
As a result of the concerns voiced by many federal courts dealing with these cases, the practice of granting Malibu Media’s expedited, ex parte discovery motions without restriction appears to have largely ended. The US District Court for the District of Maryland, for example, now routinely issues preliminary orders in all Malibu Media lawsuits, permitting Malibu Media to obtain information from ISPs only under strict constraints. Among other things, this court requires Malibu Media to serve a copy of a preliminary order on the ISP, along with the subpoena. The order directs the ISP to delay producing the identification information to Malibu Media until after the ISP has first provided the John Doe subscriber with written notice of the litigation, and thirty days’ notice that the ISP will comply with the subpoena (and provide Malibu Media with the identification) unless the John Doe subscriber files a motion to quash the subpoena. The court’s order also establishes a process whereby the John Doe subscriber may file a motion to quash the subpoena anonymously, so that his identity is not revealed in the public court record. If the subpoena is not quashed, Malibu Media and its counsel are required to mark any information received from the ISP as “highly confidential,” and to use the information only for specific, limited purposes. Malibu Media is permitted thereafter to depose the John Doe subscriber, but this deposition may last no more than one hour, and must be limited to questions regarding whether the John Doe subscriber was responsible for downloading the copyrighted work identified in Malibu Media’s complaint.
Only Malibu Media and its attorneys know the amount that it will accept in settlement, and the amount presumably varies with particular defendants and circumstances. In publicly available “friend of the court” briefs, attorneys that have defended John Doe defendants have posited that Malibu Media pursues a business plan premised on the fact that settlements in the range of approximately $3,500 to $7,000 would leave a John Doe defendant in a better financial position than retaining a good lawyer to defend them in litigation. Since statutory damages in copyright infringement cases can amount to tens of thousands of dollars, defendants may be tempted to accept a settlement in this range, regardless of whether they are guilty of any copyright infringement.
The attorneys of Davis, Agnor, Rapaport & Skalny, LLC are experienced in advising BitTorrent users caught up in “John Doe” lawsuits brought by Malibu Media and other copyright holders. For more information, contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Business Planning & Transactions Practice Group.
