Publications > C & A News Alert - May 2011

Copyright Holders On Offense: The Bit-Torrent Cases

It seems that each new development in the electronic landscape that makes creating and sharing data faster and easier, draws applications that step on toes.   Witness the recent flurry of copyright infringement lawsuits filed in federal Courts all over the country, including the Central District of Illinois and the Northern District of Illinois (which includes Cook County and the major Cook collar counties).  The Plaintiffs in these lawsuits generally allege that the Defendants have illegally reproduced and distributed their copyrighted creative works (pictures, movies, software, and so forth) via the “BitTorrent protocol.”  

A Little Bit on BitTorrent

BitTorrent is a modern and decentralized method (or “protocol”) for distributing data via the Internet.  Instead of relying on a central server to distribute data directly to individual users, the BitTorrent protocol allows individual users to distribute data directly to one another.  Because this protocol is based on peers connecting to one another, a peer must broadcast identifying information (i.e. an Internet Protocol address, or “IP address” for short) before it can receive data.  The actual names of peers are unknown, as the users simply download and distribute data under the cover of their IP addresses.  More general information about the BitTorrent protocol can be found here: http://en.wikipedia.org/wiki/BitTorrent_(protocol).

The Central District Case

In a lawsuit filed about 7 weeks ago in the Central District of Illinois, VPR Internationale v. Does 1 - 1017, the Plaintiff (VPR) is a Montreal, Quebec based producer of adult entertainment content.   VRP filed its Complaint against 1,017 “Doe” Defendants (identified only by IP address), and has alleged that these Defendants have distributed adult videos in violation of VPR's copyrights.   In this case VPR has sought “expedited discovery” in the form of subpoenas issued to major Internet Service Providers (“ISPs”) to identify the individual subscribers associated with the particular IP addresses they believe have been used to improperly distribute the Plaintiff's copyrighted material. 

The Court in the VPR case denied the Plaintiff's motion for expedited discovery, and the Plaintiff requested leave to take an immediate appeal to the Seventh Circuit to seek guidance in answering this new question of law:

“Defendants' identities are unknown to the Plaintiff. Instead, each Defendant is associated with an Internet Protocol (IP) address. Internet Service Providers (ISPs) know identity and contact information associated with each IP address. Is the Plaintiff entitled to discover this information by serving ISPs with subpoena duces tecum . . . ?”

In denying VPR's request for an immediate appeal the trial Court noted that:

“. . . VPR ignores the fact that IP subscribers are not necessarily copyright in-fringers. Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP. The desk-top computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers' Wi-Fi connections.”

Further, the Court observed that simply identifying a subscriber’s identity and address does not necessarily equate with copyright infringement:

“The infringer might be the subscriber, someone in the subscriber's house-hold, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”

This case continues, and we are watching it closely. 

The Northern District Case

While the Court in the Central District has denied requests for expedited discovery, this is not the case in the Northern District of Illinois, in Chicago.  In at least one case, MCGIP, LLC v. Does 1- 316, the Court has allowed expedited discovery.  As a result, some of the “Doe” Defendants have received letters from their ISPs providing them with a deadline to file a motion in the lawsuit to quash, or nullify, the subpoena that has been issued to them.  If no motion to quash is filed by the specified date, the ISPs may disclose the Doe Defendant’s name, address and any other information they have as directed by the Court.

Are There Defenses to These Actions?

In addition to the simple defense that a Defendant may not have been the actual individual who downloaded copyrighted material (as suggested by the Court in the VPR case) another defense may be that the Plaintiffs in these cases have improperly joined multiple Defendants into one case, instead of filing separate cases against each Defendant.

A number of courts and a number of attorneys have attacked the validity of Plaintiff’s strategy of naming more than one Defendant in these lawsuits, when the conduct of each Defendant is not the same, i.e., did not involve the same copyrighted work. If the Plaintiff is required to file individual lawsuits against hundreds or thousands of Defendants, instead of one lawsuit against each, the associated costs, i.e. filing fees, legal fees, and so forth, necessarily increase exponentially.

In addition, some courts have suggested that the Plaintiffs – not knowing the identity or address of each defendant – may not have personal jurisdiction over those defendants in the venue of choice. Finally, where a Defendant asserts that he or she was not involved in any way in the downloading of any copyrighted material, it is unclear how the Plaintiff will be able to prove its case, especially when the strong argument exists from the Central District, i.e. that an IP address does not necessarily identify a copyright infringer.

The Stakes Can Be Significant

The consequence of not defending one of these lawsuits (and having a judgment entered by default for failure to defend -- because it seems remote or disconnected to the Defendant’s everyday life) can be huge. Under the federal Copyright Act, the Court can award the Plaintiff “actual damages” which may be insignificant in many cases. However, the Court may also award “statutory damages,” and under the law, damages can be assessed in amounts ranging from $200 to $150,000 per instance of infringement depending on many factors – chief among them being a Defendant’s willfulness.

Note that if you are falsely accused of infringement in a case like this, the Court also has the discretion of awarding the innocent Defendants his or her attorney fees incurred in defending the case.

While these early cases involve adult themed material, we can only assume that other potential plaintiffs (think: movie studios, software developers, and so on) are watching these legal developments carefully and strategically as they consider their options for addressing perceived infringement of their own protected works.

If you, or someone you know, has received a letter from their ISP regarding one of these lawsuits or a communication regarding a motion to quash, please immediately contact Jeff Platt at Coman & Anderson, P.C. to discuss how to properly assert all available legal defenses.

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