CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

We’ve described the SOP of copyright trolls before (here and here). Judge Howell’s latest additions to the troll jurisprudence confirm her commitment to the view that troll-plaintiffs using that SOP are pretty much entitled to the identities of the folks associated with the IP addresses relied on to get the litigation started. In other words, when a troll-plaintiff subpoenas ISPs looking for defendants’ identities, challenges to those subpoenas don’t stand much chance, whether the challenges are based on personal jurisdiction, joinder or First Amendment arguments. Instead, such challenges can be made only after the defendant’s identity has been coughed up. But since the revelation of their identities is precisely what many defendants hope to avoid in such cases – to keep their names from being associated with downloading seemingly racy fare (like “Stripper Academy”, or worse) – Judge Howell’s position gives the troll-plaintiffs considerable leverage for settlement purposes.

(Note, though, that not all John Doe infringement suits involve seemingly sleazy movies. One of Judge Howell’s latest decisions involves allegedly infringing downloads of the critically-acclaimed Oscar® winner, The Hurt Locker.)

In her decisions, Judge Howell rejects arguments presented by slews of defendants seeking to keep the lid on their identities in the face of plaintiffs’ subpoenas. The defendants claimed variously that: they never downloaded anything; they didn’t do anything illegal; they’re entitled to remain anonymous; the court lacks personal jurisdiction over the defendants; etc., etc. – the same arguments the Judge rejected in her decision last March.

While her rationale on the joinder and jurisdiction issues tracks her earlier order, her latest opinions break some new ground on other issues. In response to defendants’ claims that they have not engaged in any infringement and thus need not be identified, Judge Howell says, in effect, “so what?” As she sees it, whether or not any defendant infringed the work is an issue for later, after the defendant had been identified (and, presumably, deposed). A “general denial of liability” is not a basis for “preventing the plaintiff from obtaining the putative defendants’ identifying information”.

Similarly, claims of protected privacy are immaterial because “whatever asserted First Amendment right to anonymity the putative defendants may have in this context does not shield them from allegations of copyright infringement.” Judge Howell also opines (in rejecting a request for a protective order) that any right to anonymity in the context of BitTorrent activity is minimal and outweighed by the plaintiff’s need to get the defendant’s identifying information in order to protect its copyrights.  

Finally, as Judge Howell sees it, any claims of “undue burden” would apply only to the ISP – which would have to do the heavy lifting of matching up IP addresses with names and street addresses – not to the individual defendant, who essentially doesn’t have to do anything to “respond” to the subpoena.  

These cases aggravate the unevenness of the already uneven playing field in this kind of John Doe copyright infringement litigation. Reiterating that I hold no love for copyright infringers, I do believe in strong Due Process protections, especially when those protections are invoked in furtherance of First Amendment values. Even if a BitTorrent user’s First Amendment rights may seem minimal to some, those rights do not evaporate entirely. An important component of traditional First Amendment protection lies in procedural measures that require plaintiffs to clear certain hurdles before a suit can go forward. 

For my money, Judge Howell’s rulings have written these hurdles out of the law as far as John Doe copyright cases go. In Judge Howell’s view, a plaintiff will apparently be allowed to bring a single suit to be heard in a single court against thousands of people who have only the barest connection to each other or to that court’s jurisdiction. Those thousands of defendants will then be effectively forced, regardless of their claimed innocence, to opt for a de facto admission of guilt through settlement simply because that’s cheaper than paying the costs – attorney’s fees, travel, etc. – required to defend themselves in court. The approach that pervades Judge Howell’s decisions reflects a reversal of traditional presumptions, a “guilty of infringement until proven innocent” mindset that absolutely horrifies me. 

So in case any troll-plaintiffs looking for a place to sue thousands of John Doe defendants missed Judge Howell’s March order, she has now reinforced the message in spades: the U.S. District Court in D.C. will welcome your business. But let’s hope that none of those cases go to trial, since the available courtrooms aren’t set up to accommodate 5,000+ litigants at a time.

[One final note: This blogger is aware of claims advanced elsewhere (and referenced by at least one person who commented on my post about Judge Howell’s March decision) that the Judge may hold a longstanding bias in favor of the copyright holders. I want to state emphatically that I do not endorse such claims and have seen no conclusive evidence to support them.]

As you might guess from, say, the case title which identifies a gazillion defendants only as “John Does”, this case (actually, Howell’s decision involves three separate consolidated cases) was brought by copyright trolls. I described the general troll MO in a blog we posted last fall. 

As I described there, the drill starts when the copyright holder of, say, a movie determines that the work has been shared on-line (through a service like BitTorrent). Normally, all that is known about the sharers is their IP addresses. But that’s enough to file a complaint, identifying the defendants as John Does. Once the complaint has been filed, the plaintiff (a/k/a copyright troll) asks the court for a subpoena directed to all the Internet Service Providers (ISPs) associated with the known IP addresses. The purpose of the subpoena is to get the ISPs to cough up the names and addresses associated with the IPs. Once the troll can thus identify individual defendants, it can start to pressure them into settling in order to avoid the time, hassle and potential embarrassment of a trial.

The ISP can move to quash the subpoena. More often than not, however, the ISP will simply notify its subscribers (i.e., the ones associated with the IP addresses listed in the complaint) that he or she will be identified to the plaintiffs unless the subscriber notifies the ISP that he or she has filed a motion to quash the subpoena. (Time Warner is a notable exception, having fought back in several cases). At this point, many subscribers surrender. They contact the plaintiff's attorneys seeking simply to make the matter go away, in return, of course, for an appropriate payment to the plaintiff.  This plays right into the entire business model of the trolls – use the efficiency of mass litigation to grab as much low-hanging fruit as you can.

My knowledge of this issue has grown exponentially in recent months. At first, I noted (and tracked) the troll trend as an interesting, if irritating, development affecting two interests in my wheelhouse: First Amendment and intellectual property. But the troll lawsuits began to replicate like a virus. And I found myself in the middle of the fray, moving from interested observer to active counselor. I have advised some ISP clients on dealing with trolls’ subpoenas (move to quash? respond?). And I have represented individuals who were notified (by their ISPs) of subpoenas the individuals would need to move to quash. You could say we are now fully engaged in the copyright troll wars.

So I’m thankful to groups like the Electronic Frontier Foundation, Public Citizen and the American Civil Liberties Union. They have filed amicus briefs in many troll cases, arguing (among other things):

• jurisdictional issues (with many John Doe defendants scattered around the country, it’s effectively impossible to determine that any particular court has personal jurisdiction over any of the defendants);
• joinder issues (is it legally permissible to combine all defendants in a single action?)
• First Amendment issues that should be resolved before the identification of John Does can be compelled.

The efforts of these groups have rebuffed many of the trolls. (We recently pointed out on our Twitter account (@CommLawBlog) that EFF was reporting that over 40,000 John Doe defendants were dismissed in a span of just a few weeks from cases brought in California, D.C., Illinois, Texas and West Virginia. Such victories are immensely helpful – any disruption in the smooth progression from mass filing to large scale settlement deters future litigation.

That brings us back to Judge Howell's order, which does defendants no favors and, thus, should encourage the trolls. 

The case itself isn’t unusual. The plaintiffs are movie studios whose works were downloaded and shared via BitTorrent programs. Per the usual drill, subpoenas were issued to various ISPs. Time Warner moved to quash the subpoenas, arguing that having to turn over all the requested identifying information would impose an undue burden and expense; alternatively, Time Warner asked for up to three years to respond. EFF, Public Citizen, the ACLU Foundation and the ACLU of the Nation's Capitol filed an amicus brief in support of the defendants, arguing the jurisdiction, joinder and First Amendment issues.

Addressing Time Warner’s arguments, Judge Howell found that the subpoenas aren’t unspecific, undefined or unduly broad. While there are a large number (1,028 total) of subpoenas, they all seek basic information, which Time Warner appears to be able to provide, if slowly. (Time Warner contends it can produce only 28 IP addresses a month, which seems somewhat low when compared to the lookup/production rates of other ISPs that were entered into the record.)  In addition, plaintiffs offered to pay for extra staff to assist in the process.  In view of these and other factors, Judge Howell simply wasn’t convinced that Time Warner would be unduly burdened if forced to comply with the subpoena.

Unfortunately, the Judge similarly had no problems rejecting the amici’s arguments:

Joinder: Claims against a number of separate and distinct defendants can generally be joined if either (a) the claims arise from the same transaction or occurrence (or series of transactions or occurrences), or (b) a question of law or fact exists that is common to all the claims. The amici argued that the 1,000+ defendants were engaged in similar, but technically separate, conduct: they were at separate locations, using separate computers and not always interacting with each others. 

Judge Howell disagreed. The nature of BitTorrent necessarily requires that every defendant is interacting with every other defendant. (Later users are really pulling little pieces from every prior user to speed up the download process – that’s my attempt at oversimplifying a BitTorrent explanation.)  In addition, the plaintiff must establish the same legal claims against every defendant. Judge Howell ruled that there would be no prejudice to any individual defendant because, at least at this point in the litigation, they will only be identified; they will not be required to respond or assert a defense until later (if at all). By contrast, this identification is essential to the plaintiffs’ ability to move their case forward.

Jurisdiction: The amici argued that each defendant must be sued in the jurisdiction in which he or she resides, as due process principles require. Judge Howell didn’t disagree, but instead held that this concern is better raised later in the process: each defendant will have ample opportunity to assert jurisdictional defects down the line. 

First Amendment: The amici argued that the defendants’ use of BitTorrent constituted conduct protected by the First Amendment, assuring the defendants anonymity. Judge Howell acknowledged that BitTorrent users’ conduct is protected “expressive activity”. But she also found it entitled only to minimal protection because “the [defendants’] ultimate aim ‘is not to communicate a thought or convey an idea’ but to obtain movies and music for free”. The plaintiffs were able to overcome this minimal protection for a number of reasons: plaintiffs had made a prima facie claim of copyright infringement; they are (at this point in the litigation) making requests for specific information they can’t obtain otherwise; there is an overriding need for the information to resolve the case; and the defendants do not have a significant privacy interest, since Time Warner’s terms of service specifically preclude illegal infringing activity.  

While other courts have declined to be completely persuaded by similar joinder/jurisdiction/First Amendment arguments, most have at least questioned the plaintiffs’ need for widespread discovery leading to the identification of these defendants. Judge Howell’s order is probably the strongest I’ve seen in favor of keeping all defendants as part of the same case through discovery. 

Judge Howell’s decision has a number of important implications:

First, it plays right into the copyright trolls’ hands. Their business model is built upon efficiency and designed to force quick settlement. The sooner the troll can tie a particular, identified defendant to a particular instance of alleged infringement, the quicker the troll can squeeze that defendant for a pre-trial deal. (Selling points: avoid litigation hassles/costs, avoid embarrassment from having your name connected, rightly or wrongly, with unlawful downloading – especially if the material allegedly downloaded is (how do we say this politely?) unseemly.) 

Any bump in the litigation road costs money and devalues the lawsuit, as far as the troll is concerned. Requiring the plaintiffs to sue individual defendants, or at least file lawsuits involving the same movie in every jurisdiction where a defendant is located, is a serious disincentive to these mass lawsuits. 

I want to be clear on one thing: if an individual actually engages in copyright infringement, he or she needs to be held accountable.  Copyright infringement is not a “victimless crime”. It is a real, and increasingly common, violation of law that has a considerable economic impact.   But there is no reason to allow the legal process – and especially First Amendment and Due Process values – to be hijacked to redress these injuries.

But that’s what’s happening when Judge Howell says the amicis’ arguments can be deferred.   The result will be nearly irresistible pressure on a significant number of defendants to settle their cases before they are formally identified in court – even though they may have legitimate defenses to raise, including complete innocence.

Want an example? Imagine that you’re accused of downloading a pornographic title. You know you did not download this movie.  You have a wireless router that may not have been properly secured, or maybe it was hacked while you were out of the country. You can prove all of this. So you’re as sympathetic a defendant as possible. Prior to Judge Howell’s ruling, you would ordinarily not be subject to identification through ISP-directed subpoenas unless you were sued in your home court. But now you’re stripped of any of the pre-identification procedural defenses. Under no circumstance do you want your name publicly associated with a pornographic movie, even if the allegation can eventually be disproven – particularly because disproving it will require expensive and time-consuming litigation.  

Given those circumstances, a defendant could easily conclude that the only acceptable alternative would be to settle (even if the plaintiff’s cash demand were inflated as a result of Judge Howell’s ruling). Again, I don’t want to exonerate the guilty, but I also don’t want to allow the threat of a kind of “outing” to serve as an undue pressure point on innocent people. Yet that’s what is really occurring here.

The second result of Judge Howell’s decision?  She and her colleagues will likely feel the full brunt of this decision in their own workloads. As noted earlier, tens of thousands of John Doe defendants have already been dismissed on procedural grounds in jurisdictions other than D.C.   I’m guessing that all of those cases, and lots more, will be funneled to the District Court here in the Nation's Capital from here on out. Indeed, we’ve already seen one current case apparently involving a pornographic film (West Coast Productions v. Does 1-5,829) that followed that arc: initially a large portion of the defendants were severed from the case when it was filed in West Virginia because the defendants didn’t live there; the plaintiffs refiled against all non-West Virginia defendants in D.C., without regard to whether the remaining defendants all live in D.C. If that’s not evidence future plaintiffs will forum-shop to D.C., what is?

So Judge Howell (and her D.C. colleagues) may soon reap what she has sown.

While there are a number of different species of the Troll, they all tend to prey on folks who aren’t taking basic steps to avoid exposure to liability. We have previously written about the need to shore up defenses against potential liability from your use – and your employees’ use – of social media on the job. If you haven’t acted on our suggestions yet, the increasing Troll population gives you one more incentive to do so.

The Troll is opportunistic, like a virus. It obsessively seeks out apparent copyright violations and when it finds what appears to be an infringement – possibly the unauthorized post of copyrighted text, possibly the P2P transfer of unauthorized copies of files (like music or movies) – the Troll zeroes in. 

One Troll species has tended to focus on printed content taken from online news sites that finds its way onto somebody else’s site (such as a chat room, discussion board or blog). Others are able to detect particular films or videos being downloaded to IP addresses through such file-sharing programs as BitTorrent. Once such seeming infringements pop up on the radar screen, the Troll goes to work.

Its first order of business appears to be to file a lawsuit alleging copyright infringement.  (Intentionally unnerving factoid: In 2010 alone, more than 14,000 such suits have already been filed.) In many if not most instances, the Troll knows only the IP addresses – not the names – of the alleged infringers, but that’s not a problem: the defendants are all listed as “John Doe” (along with the various IP addresses) in the initial court papers. (Hence the name “John Doe lawsuits” often given to such litigation.) The Troll isn’t really concerned with relatively minor details; it can always sort those out later, when it’s got your attention. 

That comes next: once the suit is filed, the Troll obtains a subpoena addressed to any and all ISPs or other such services used in the alleged infringement. The subpoena seeks the identifying names and addresses associated with the IP addresses. When those are in hand, the stunned individual defendants are besieged with offers of quick and quiet settlement, for a price. Since U.S. law provides for hefty statutory damages – that is, the plaintiff doesn’t need to prove that it has actually suffered any monetary damages in order to score big – and since the cost of litigation can be similarly hefty, there is considerable incentive to pay the nuisance price even if the defendant plainly did not infringe anything. There is even more incentive if the defendant is, or could be, liable for infringement.

Want a more detailed glimpse into the nitty-gritty? Check out reports from the EFF, or Wired, or Ars Technica. It’s pretty scary. (Sadly, the core of the Troll operation is reportedly populated primarily by lawyers. Please don’t hold that against the rest of us.)

In general, there are three ways that a media entity might get cross-wise with a Troll. Fortunately, we may be able to help you no matter which situation applies. 

First, the infringement may occur from content posted on your website – maybe on a discussion board or chat room that allows your listeners, viewers or others to interact. Or maybe you provide the opportunity for visitors to post their own comments on your site. All it takes is somebody, anybody, posting copyrighted content somewhere on your site. Yoo-hoo, Copyright Trolls – Come and get it!!! 

(A likely source of such content: reports taken from online news sites, particularly during highly partisan discussions of hot button issues. Perhaps the most famous such Troll operating in this area: Righthaven, LLC, a company that has made a business of purchasing copyrighted news content from the content’s creators and then aggressively suing those who post that content without permission. Check out EFF’s description of Righthaven’s MO here.) 

The good news is that you can get yourself absolute immunity from this kind of infringement claim by taking a few simple steps to obtain the protection of Section 512 of the Digital Millennium Copyright Act. With a few tweaks to the Terms of Service of your website, the filing of a form with the United States Copyright Office and a minimal amount of vigilance on your part – enough to respond to the occasional Takedown Notice sent to your Designated Agent – you should be good to go. Sure, there’s a $105 filing fee for that Copyright Office form, but that’s peanuts compared to the potential statutory damages that are in play for copyright infringement. (If this sounds familiar, it’s because we’ve written about it here before; so have the folks at Wired.)

Another target of the Trolls: illegal downloaded/sharing of movies and the like. If somebody on your staff does this using your equipment, your IP address will likely show up in the Trolls’ search and, bingo, here comes the infringement claim against you. Once this happens, it may be Too Late to apply any easy fixes, so the trick is not to let it happen in the first place. We’ve spoken before about adopting guidelines for use of social media in the workplace. This is one situation that those guidelines would address. 

Yet another Troll trick: If you’re an Internet service provider (or a cable or telephone company bundling or reselling service), you might receive a subpoena asking you to identify the subscriber found at a particular IP address. In some of these cases, you might have a responsibility to forward the subpoena to the subscriber so that he/she can challenge the subpoena himself.  We can walk you through the process of notifying a subscriber, challenging a subpoena or responding to the subpoena with the required information.

If you do happen to get sucked into any kind of Troll-initiated infringement action, first take a deep breath, then take heart. The EFF has already identified a few arguments that might counter the Trolls in some cases. For example:

• Trolls often join all the defendants in a given case in a single lawsuit filed in a single District Court, which may entail constitutional due process problems.
• Trolls often sue based on the IP address of the computer used to download/share the copyrighted work. But the owner of that computer might not be the same person who actually committed the copyright infringement at issue.
• There is a First Amendment right to anonymous speech which might outweigh the need identify the speaker/defendant. 

In fact, if there’s one upside to the increase in Copyright Trolls, it’s that that increase has spawned a pretty solid body of materials aimed at countering such suits – so filing the required motion to quash isn’t nearly as difficult or expensive as it used to be. 

Still, an ounce of prevention is worth a pound of cure – so tighten up your social media policies and, if nothing else, act now to GET YOURSELF UNDER THE SECTION 512 UMBRELLA!!!