Judicial Challenges with Bittorrent Lawsuits

U.S. News recently reported that since mid-2010 over 220,000 individuals have been sued in mass copyright lawsuits regarding the sharing of files over bittorrent. However, with the growth of these types of lawsuits, courts are concerned because of the possibility that subpoenas to obtain internet subscriber information may bring in innocent parties in litigation and improper joinder of parties.

Generally, Bittorrent is a peer-to-peer internet file-sharing protocol that allows a “swarm” of users to download and upload content from each other simultaneously. A user who supplies an entire copy of a file is called a “seeder,” while users in the process of downloading a file who have not yet completed their downloads are called “peers.” Peers download portions of the file at random, and upload those portions to other members of the swarm. Peers do not choose which pieces are downloaded and they do not choose who to share those portions with. Nevertheless, a peer is able to see the IP addresses of the other swarm members. Accordingly, it is possible for a copyright owner to join a swarm and obtain the IP addresses of the users sharing a given file.

It seems that bittorrent litigation will not be slowing down. Thus, courts are now more resistant to mass-joinder cases clogging up their dockets especially when the plaintiffs have no intention of litigation, but rather are merely seeking identifying information and authorization to pursue discovery in the interest of gaining settlement leverage. As more defendants file motions to quash suggesting that that they did not participate in the alleged activity, courts are also becoming sensitive to the idea that IP addresses may not be as likely to identify defendants as previously suspected. Plaintiffs, on the other hand, continue to refine their practices and theories of liability. See Liberty Media Holdings LLC v. Hawaii Members of Swarm…, Case No. 11-CV-00262-DAE-RLP, (Jan. 30, 2012 Order, denying motion to dismiss as to direct and indirect infringement and civil conspiracy, but dismissing allegation that failure to secure WiFi amounts to actionable negligence).

Also, some ISPs are successfully opposing subpoenas and other demands for production of documents. For example, Verizon has raised objections such as: (i) improper joinder; (ii) that its subscribers may not be the parties responsible for the downloading; (iii) that the information obtained may be used for improper purposes of coercing settlements; and (iv) that the subpoenas were violative of its customers’ privacy interests. See John Wiley & Sons, Inc. v. John Does, Case No. 12-CV 1980 (May 3 2012).

For many reasons, including, but not limited to, low settlement demands, high cost of litigation, and risk of statutory copyright damages and attorney fees, aggressive litigation tends to be rare, so it may be some time before meaningful appellate guidance on these issues is available.

For more information, contact Los Angeles Internet and Cyberspace lawyer, Salar Atrizadeh.