Furious judge decries “blizzard” of copyright troll lawsuits

Courts around the country are being flooded with mass copyright lawsuits. In a typical case, the owner of a pornographic film sues dozens of anonymous defendants in a single lawsuit, obtains their contact information, and then tries to extort a four-figure settlement from each defendant before the case reaches the courtroom. The potential embarrassment of having one's name publicly associated with pornographic works gives even innocent defendants a strong incentive to settle.

But as the volume of litigation has grown, judges have begun pushing back, refusing to approve these dragnet information requests. On Tuesday, an obviously angry New York federal judge ruled against plaintiffs in several porn copyright trolling cases. His 26-page ruling is a devastating critique of this entire litigation strategy.

It wasn't me, judge

The campaigns are based on the premise that the registered subscriber of any given IP address is the person who downloaded infringing files using that address. But Judge Gary Brown points out how unreasonable that assumption is, using examples from the case before him:

John Doe #16 has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. John Doe #10 represents that downloading a copy of this film is contrary to her “religious, moral, ethical and personal views.” Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.

Judge Brown then quotes another New York judge who wrote, in another similar case:

Plaintiff's counsel estimated that 30 person of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material. Counsel stated that the true offender is often the “teenaged son ... or the boyfriend if it's a lady.” Alternatively, the perpetrator might turn out to be a neighbor in an apartment building that uses shared IP addresses or a dormitory that uses shared wireless networks. This risk of false positives gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading “My Little Panties # 2.”

"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," Judge Brown wrote. "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."

Litigation campaign or extortion racket?

Judge Brown also observed that the plaintiffs in such cases don't seem to be interested in actually litigating cases against purported defendants. Rather, the goal appears to be: get quick settlements before the case reaches a courtroom. Judge Brown quoted from the written statement of "John Doe #16":

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 (without the need for publicly tying my name to the Complaint) that I had nothing to do with the alleged copyright infringements. 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. While the Negotiator said on October 24, 2011 that he would check to see if he could come down from the thousands of dollar settlement amount, the Negotiator has not responded to two voice mails that were left on October 25, 2011. Notably, the Negotiator justified the settlement amount because, in part, I would incur legal fees in hiring an attorney.

"The most persuasive argument against permitting plaintiffs to proceed with early discovery arises from the clear indicia, both in this case and in related matters, that plaintiffs have employed abusive litigation tactics to extract settlements from John Doe defendants. Indeed, this may be the principal purpose of these actions," Judge Brown wrote.

"I find counsel for [plaintiff] K-Beech has already engaged in improper litigation tactics in this matter, and find it highly probable that [plaintiffs] Patrick Collins Inc. and Malibu will likely engage in similar tactics if permitted to proceed with these mass litigations," he continued. "Such conduct cannot be condoned by this Court."

Swarms are not conspiracies

The plaintiffs have tried to sue dozens of defendants in a single lawsuit in order to avoid paying the filing fees (usually $350 each) that would come with suing each defendant separately. They justify this approach by claiming that everyone who participated in a BitTorrent swarm for a single file was engaged in a single "conspiracy" to distribute this file.

Judge Brown found this line of argument unpersuasive. He noted that the BitTorrent protocol is fully automated, meaning that the various defendants had no personal contact with other members of a particular swarm. More importantly, he pointed out that some of the alleged infringements occurred days apart, making it unlikely their computers communicated with one another at all.

Given these facts, and the divergent defenses raised by the various John Does, Brown ruled that allowing an entire swarm to be sued in one lawsuit would "complicate these actions, resulting in waste of judicial resources."

Instead, he allowed discovery to proceed against only the first defendant in each of the four lawsuits. If plaintiffs want to sue the dozens of additional defendants, he said, they would need to file a separate lawsuit—and fork over the requisite $350 filing fee—for each one.

Judge Brown estimated that the plaintiffs in the four cases before him were trying to evade paying more than $25,000 in filing fees they would owe if they filed the lawsuits individually. Nationwide, he argued, copyright trolls have likely stiffed the judicial system to the tune of millions of dollars.