Industry News

Update on those Piracy Lawsuits

OP/ED by Jake Harris

So a lot has happened since last I wrote an article here on LIB.  Torrent sites have been shut down, Pink Visual believes that its content retreat was a success, and even in the face of outright defeat lawyers are still trying to convince us that they will succeed in prosecuting John Doe’s.

Let’s start by breaking down the legal action of the past six weeks.  Remember those lawsuits I talked about in past articles? (http://www.lukeisback.com/?p=14683) The ones where lawyers were charging potentially thousands of individuals based on torrent tracking?  Yeah, most of those lawsuits have been dismissed.  It turns out that our legal system, supported by our tax dollars, is actually refusing to do the legwork that it requires copyright holders to do!  Weird how our government actually helps its citizenry sometimes!  This has the potential to be a pretty big article since I will be examining a lot of different angles and I’ll try and split everything up fairly neatly over two or three articles over the next week or so J

Here are the specifics of what happened.  I’ll be speaking in generalities since each case is slightly different and each state/court has different protocols for case filings, etc…

1.) Numerous lawyers, or groups of lawyers, filed cases across the United States charging that large groups of people illegally downloaded/uploaded specific adult film titles via torrents.  The main groups were in Texas where Larry Flynt Publications filed a group suit, in West Virginia where Ken Ford and his Adult Copyright Company filed a group suit, and in Federal Court where John Steele has filed numerous group suits.

2.) Here’s where things become difficult, muddy, and potentially frustrating.  In a DC district court Judge Rosemary Collye was overseeing two cases involving mainstream movies and piracy.  Similar to the porn piracy cases two lawsuits were brought that contained thousands of potential John Doe’s.  After a period of time went by without prosecutorial progress the Judge required the group that brought the suits, US Copyright Group (USCG), to actually name the defendants in the case.  They couldn’t do it.  The reason being was that the ISP that the USCG went to in order to receive the names, Time Warner Cable, wouldn’t cooperate as quickly or efficiently as they wanted.  Time Warner stated that the maximum number of names they would research and provide would be 28 per month, split evenly between the two cases.  All in all it was going to take five years before the USCG could gather all the names it needed for the lawsuits and that length of time just wasn’t acceptable to the judge.  In essence the judge told anyone who was wanting to proceed with a case of this nature that they needed to have all of the information up front and accessible in order to have their day in court.  This poses a GIGANTIC problem for anyone wanting to do this in the future and I’ll elaborate on this in part two coming up soon. (http://arstechnica.com/tech-policy/news/2010/11/put-up-or-shut-up-time-for-us-copyright-group.ars)  In a similar move Time Warner Cable said that it would only allow 10 names to be researched and unveiled per month with regards to the Larry Flynt Publications case filed in Texas.  I’m not aware and wasn’t able to find out why the two numbers are different for the different cases but the central issues and reasoning remains the same. (http://news.cnet.com/8301-31001_3-20026654-261.html)

3.) In addition to requiring actual names, Judge Collye set a precedent by stating that if a lawyer wants to bring cases like this in front of the court they must make sure that that court has personal jurisdiction with regards to the location of the John Doe.  So now not only do you need to have evidence to support your case against an individual but you also need to have their IP, their ISP (with their ISP’s corroboration in finding that individuals name and personal information), and you now also need to file the case in that individual’s locale.  For example, if your law office is based in Washington D.C. and you want to file suit against an individual you have identified who was using a torrent to download/upload some copyrighted porn in Billings, Montana you now have to fly to Montana or hire lawyers in Montana to file the case.  No longer can you just group 5,000 people together, even if they were downloading/uploading the same file.  (http://arstechnica.com/tech-policy/news/2010/11/put-up-or-shut-up-time-for-us-copyright-group.ars)

 But wait, it gets better!

Lets say you’ve done all the footwork and all the research on individuals illegally downloading and uploading your porn.  You’ve spent five months gathering over 100 names that you’ve been able to identify as pirates living in West Virginia and you want to file suit against them.  Instead of filing one suit with 100+ names, you’re going to have to file 100+ suits individually and pay the appropriate court fees and lawyer fees for each separate case.  That means that for each person you want to go after for pirating a $50 porn film you will have to pay $350 in filing fees and thousands in lawyer fees. (http://arstechnica.com/tech-policy/news/2010/12/judge-kills-massive-p2p-porn-lawsuit-kneecaps-copyright-troll.ars)

 The reasoning behind this is multi-fold but one of the primary issues is the fact that each individual named can and will most likely have a different defense and unique situational circumstances that make it unfair to group hundreds or thousands of people in with one another.

 Whew, talk about a lot of information!!!  And I’m not even close to being done!

 Coming up later …why this is expected, what this means for torrent prosecutions, does this have anything to do with the recent closure of two massive torrent sites, and how it all relates to the new anti-piracy strategy Pink Visual recently announced.

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