Judge throws out mass John Doe porn copyright lawsuits

Porn studios can't determine who downloaded their movies from BitTorrent by using an IP address, the judge says

A judge in New York has shot down the attempt of three pornography studios to sue nearly 80 people for allegedly downloading movies on BitTorrent, with the judge slamming the studio's efforts to file lawsuits against multiple anonymous defendants.

Magistrate Judge Gary Brown denied the studio requests to subpoena the names associated with 79 IP addresses, with Brown arguing that IP addresses aren't enough evidence to pinpoint who actually downloaded a file from BitTorrent.

"The assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time," Brown wrote in his ruling, first noted by the Fight Copyright Trolls blog. "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."

Brown, of U.S. District Court for the Eastern District of New York, allowed the lawsuits to move forward against only one defendant in each of four so-called John Doe lawsuits targeting anonymous Internet users.

Brown's 26-page order, issued Tuesday, could be a turning point in a massive effort to sue BitTorrent users for copyright infringement, said Mitch Stoltz, an attorney with the Electronic Frontier Foundation, a digital rights group that has opposed the John Doe lawsuits.

Since mid-2010, movie studios and other content producers have sued more than 220,000 BitTorrent users for copyright infringement, Brown noted in his ruling, citing a U.S. News and World Report story.

Brown's ruling was broader than BitTorrent decisions from most other judges, and could be a model for future court decisions, Stoltz said. There's been a "huge split" among judges on whether to grant subpoena requests in these mass John Doe infringement lawsuits, although judges in California, Illinois and Washington, D.C., have taken similar stances to Brown's, he said.

"Many [judges] will see this as confirmation," Stoltz said of Brown's ruling. "There absolutely is a trend toward shutting down this sort of abuse of discovery."

Brown took studios K-Beech, Malibu Media and Patrick Collins Inc. to task for their use of John Doe lawsuits seeking the identities of defendants by IP address. A number of people, including family members of the owner of the Internet account, visitors or free-riders on an open Wi-Fi network, could have access to an IP address and accomplished the alleged downloads, Brown wrote.

One defendant said he was at work during the time of the alleged download, Brown wrote. A second defendant said the plaintiffs targeted a closed account with an ISP. A third John, or Jane, Doe said she has "religious, moral, ethical and personal" objections to porn, but suggested the downloader may have accessed her unsecured Wi-Fi network.

The lawyer for a fourth John Doe said his client is "an octogenarian with neither the wherewithal nor the interest in using BitTorrent" to download porn, Brown wrote.

The judge's decision will make it difficult for the studios to fight "rampant" online piracy, said Jason Kotzker, the lawyer for Malibu Media and Patrick Collins.

"If copyright holders are to be able to take any steps to fight piracy, they must start with evidence relating to an IP address," Kotzker wrote in an email. "The only way to know who was controlling the IP address at the time of infringement is by the court granting initial discovery."

Many of the infringement cases are settled, with the infringers taking responsibility for their actions, Kotzker added.

But tens of thousands of BitTorrent users infringe his clients' copyrights every month, he added. Without a way to identify them, "intellectual property has no value," he said. "A right is no longer a right if it cannot be enforced. Should my clients just surrender and give up?"

K-Beech disagrees with the judge's decision, said Frederic Abramson, a lawyer for the studio. K-Beech will move forward with its lawsuit against John Doe No. 1, he said.

Brown, in his ruling, also suggested the porn studios may be shaking down defendants for settlements by preying on the defendants' fear that their names would be publicly connected with pornography.

One defendant offered a negotiator for studio K-Beech "unfettered access" to his computer in an effort to prove he did not download the movies, Brown wrote. K-Beech instead pushed for a settlement or for the lawsuit to move forward, Brown wrote.

"This suggests an approach that is highly inappropriate," Brown said.

The EFF's Stoltz agreed, saying the mass BitTorrent lawsuits attempt to force the owner of the IP address to "either pay up or finger someone else."

"This is a business model that depends on them getting relatively small settlements in the several-thousand-dollar range from a large number of people," Stoltz said. "If they're not getting large numbers -- if they have to go through a full court process with any appreciable fraction of the people they're targeting -- they're not making any money."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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