A US judge has labelled an attempt to sue internet subscribers whose accounts were used to download four pornographic films “abusive litigation” and also criticised legal arguments that an IP address is a valid way to identify an individual online.
The comments were made by Gary R Brown, United States Magistrate Judge, in a case known as K-Beech, Inc. v. John Does 1-37 and associated cases involving entities called Malibu Media and Patrick Collins Inc. K-Beech proudly states it makes films for “adults who enjoy extremely graphic and explicit XXX entertainment.” Some of those products, the company alleged, were illegally downloaded using BitTorrent.
K-Beech thinks it knows who did so and provided the court with what Judge Brown described as “an IP address purportedly corresponding to a physical address”.
Judge Brown thinks that's a lousy way of identifying anyone, and in his judgement said so in no uncertain terms: “However, 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. 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.”
The Judge also criticised plaintiffs' arguments that they should be granted access to more information about the identity of IP address users, as “... the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper.”
The Judge also noted that some of the defendants look to have good cases.
One has stated under oath that he closed the account allegedly used to download K-Beech's films before the time of the downloads. Another is “... an octogenarian with neither the wherewithal nor the interest in using BitTorrent” while a third stated that “... her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.”
Another defendant's testimony seems to show that K-Beech is more interested in intimidating defendants than giving them the chance to prove they did not download its works.
“Upon receipt of the Complaint, I reached out to Plaintiff and spoke to a self-described “Negotiator” in an effort to see if I could prove to them … that I had nothing to do with the alleged copyright infringements,” one defendant said. “The Negotiator was offered unfettered access to my computer, my employment records, and any other discovery they may need to show that I was not the culpable party. Instead, the Negotiator refused and was only willing to settle the Complaint for thousands of dollars.” The Negotiator later failed to return voice mails.
Judge Brown's view of that behaviour is dim, as he writes that the “... plaintiffs have employed abusive litigations tactics to extract settlements from John Doe defendants. Indeed, this may be the principal purpose of these actions, and these tactics distinguish these plaintiffs from other copyright holders with whom they repeatedly compare themselves.”
Brown also criticises the plaintiffs' tactics of adding many defendants to a single action, saying it appears to be abusing a loophole that allows litigants to file only one court fee even though they act against many defendants.
“Nationwide, these plaintiffs have availed themselves of the resources of the court system on a scale rarely seen,” the judgement reads. “It seems improper that they should profit without paying statutorily required fees.”
The judgement nonetheless permits the plaintiffs Malibu Media and Patrick Collins to “... obtain the name, address, and Media Access Control address for each Defendant designated as John Doe 1” and says the defendants' internet service providers must hand over relevant information. ®