Illegal (Movie) File Sharers Beware! We Will Find Out Who You Are!

If you thought it would be hard to fill all those hours you spent reading / complaining about / championing the RIAA’s litigation efforts against illegal file shares, your prayers have been answered.  Over the last year a number of “innovative” lawyers have taken to representing movie producers and distributors in similar actions, with a surprising number involving porn; e.g., Illinois lawyer John Steele who represents Arizona porn producer CP Productions, West Virginia lawyer Ken Ford, the lawyer behind the Adult Copyright Company, and Texas lawyer Evan Stone, who in addition to suing on behalf of gay porn creator Lucas Entertainment is filing suits on behalf of anime producer FUNimation.  The main difference between the RIAA’s strategy and these new suits is volume, volume, volume.  These enterprising plaintiffs have sued more defendants in 2010 alone that the RIAA did during its entire campaign.

Whatever you may think of these massive John Doe suits from an ethical, moral or business model viewpoint, these suits have not been without their share of real legal problems. A critical legal issue in many (all?) of these cases has been the Internet Service Providers’ motions to quash the pre-discovery subpoenas served by the plaintiffs to obtain the identity of the users associated with the IP addresses alleged to have been engaged in the illegal file sharing.

While other judges have been less receptive to these plaintiffs, Judge Beryl Howell of the District Court for the District of Columbia recently denied Time Warner Cable’s motion to quash and ordered TWC to produce the identities of the individuals associated with more than 5,500 IP addresses.

By way of background, the plaintiffs in these three consolidated cases allege that the John Doe defendants each used the BitTorrent file-sharing protocol to illegally download copies of the plaintiffs’ copyrighted movies.  According to the plaintiffs’ BitTorrent is unique (compared to, e.g., Napster) in that it “makes every downloader also an uploader of the illegally transferred file(s). This means that every “node” or peer user who has a copy of the infringing copyrighted material on a torrent network must necessarily also be a source of download for that infringing file.”  [Legally speaking, the illegal copying of the plaintiffs’ works by these John Doe defendants arise out of the same transaction, occurrence, or series of transactions or occurrences, which Judge Howell found met the standard for permissive joinder under FRCP 20(a)(2)(A).]  The plaintiffs hired Guardaley Limited, an anti-piracy firm, to identify the users that were illegally sharing the plaintiffs’ motion pictures, and then provided the plaintiffs with the alleged infringers’ IP addresses, as well as the date and time the alleged infringement activity occurred.  The plaintiffs then filed suit against the John Doe defendants and moved for pre-Rule 26(f) discovery in the form of subpoenas compelling ISPs to identify the individuals associated with those IP addresses.

Most of the commentary about the Judge’s denial of TWC’s motion to quash has centered around this passage:

“If the Court were to consider severance at this juncture, plaintiffs would face significant obstacles in their efforts to protect their copyrights from illegal file-sharers and this would only needlessly delay their cases. The plaintiffs would be forced to file 5,583 separate lawsuits, in which they would then move to issue separate subpoenas to ISPs for each defendant’s identifying information. Plaintiffs would additionally be forced to pay the Court separate filing fees in each of these cases, which would further limit their ability to protect their legal rights. This would certainly not be in the “interests of convenience and judicial economy,” or “secure a just, speedy, and inexpensive determination of the action.” Lane v. Tschetter, No. 05-1414, 2007 WL 2007493, at *7 (D.D.C. July 10, 2007) (declining to sever defendants where “parties joined for the time being promotes more efficient case management and discovery” and no party prejudiced by joinder).”

Commentators have focused on that fact that Judge Howell appears to be more concerned with the (economic) efficiencies of the plaintiffs rather than the interests of the unnamed John Doe defendants.   (For example, amicus in the case argued the unnamed defendants have a First Amendment interest in anonymous Internet speech.)

To me, the more interesting quote from the opinion is the following, dealing with TWC’s complaint that it would be too burdensome to respond to so many IP look-up requests: “The overbreadth that Time Warner complains of is due to the large number of Time Warner’s customers allegedly engaging in infringing activities and prompting the plaintiffs’ need for their identifying information. This, however, does not render the subpoenas overbroad in terms of the information requested about each defendant.”  The not-so-subtle jab at TWC reminds me of the comments of Paul McGuinness, U2’s manager, when he criticized ISPs for having profited off of their customers illegally sharing music (and increasingly now video).  It is hard to feel sorry for TWC when TWC creates and profits from the environment that enables this massive file sharing to occur.

Since this ruling and publicity that has followed it, it has been revealed that Judge Howell used to lobby for the RIAA, this implication being she was biased.  Reading her opinion, I think she had some sympathy for the plaintiffs, but her argument that it is judicially economical to identify all of the defendants in one suit and then allow those named defendants to object to joinder and/or personal jurisdiction makes some sense to me.

The documents are below.

TWC’s Motion to Quash
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EFF Amicus in Support of TWC
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Plaintiffs’ Response to EFF
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