Finally: BitTorrent Piracy Evidence to be Tested in Court

A landmark order by a Pennsylvania District Court judge may become the turning point for the many mass-BitTorrent lawsuits that are sweeping through the United States. For the first time in these cases a copyright holder has been ordered to go to trial, instead of settling with the alleged file-sharers for a few thousand dollars. This will be the first time that BitTorrent-related evidence will be tested in a U.S. court.

Over the past two years a small group of copyright holders have started thousands of mass-BitTorrent lawsuits, targeting more than a quarter million people in the US alone.

The copyright holders who start these cases generally provide nothing more than an IP-address as evidence. They then ask the courts to grant a subpoena which allows them to request the personal details of the alleged offenders from their Internet providers.

The plaintiffs in these cases, often described as copyright trolls, are mostly adult movie studios. Malibu Media is one of the most active studios, and this year alone they have filed 349 mass lawsuits, targeting thousands of alleged downloaders across the U.S.

This strategy has earned the adult studio millions of dollars in settlements, without going to trial once. However, this is going to change soon thanks to Pennsylvania District Court Judge Michael Baylson who delivered a landmark ruling late last week.

In a memorandum covering three mass-lawsuits, the Judge reviewed the motions of five anonymous defendants who protested the subpoena which ordered their Internet providers to reveal their identities. Judge Baylson summarizes one of the Doe defendant’s motions as follows.

“Among other things, the declaration asserts that Plaintiff has brought suit against numerous unnamed defendants simply to extort settlements, that the BitTorrent software does not work in the manner Plaintiff alleges, and that a mere subscriber to an ISP is not necessarily a copyright infringer, with explanations as to how computer-based technology would allow non-subscribers to access a particular IP address,” Baylson writes.

“In other words, according to the declaration, there is no reason to assume an ISP subscriber is the same person who may be using BitTorrent to download the alleged copyrighted material. Similar assertions are made in memoranda filed in support of the other motions.”

However, the Judge also notes that the copyright holder’s rights can’t be ignored. Both the plaintiffs and the defendants present their own version of the truth and Judge Baylson believes that a trial is needed to decide who’s right.

“The Court cannot decide substantive issues on these conflicting documents. Discovery and, ultimately, a trial are necessary to find the truth,” he writes.

For this reason Baylson has ordered a Bellwether trial, which often take place when many plaintiffs file proceedings under the same theory swamping courts with an enormous caseload. The five defendants who filed a motion will now go to trial, and the verdicts will be used to rule on similar proceedings in the future.

The Judge notes that the five defendants can enter into a joint defense agreement, and ask for other interested parties to join them. He also calls for a speedy trial to resolve the matter in a few months.

“In this case, the Court will require that the pleadings be completed promptly and will enter an order which provides for discovery to start without delay and be completed expeditiously so the case can proceed to final disposition on the merits, within six months,” Baylson writes.

The Bellwether trial will be the first time that actual evidence against alleged BitTorrent infringers is tested in court. This is relevant because the main piece of evidence the copyright holders have is an IP-address, which by itself doesn’t identify a person but merely a connection.

In a past RIAA court case experts described the evidence gathering techniques of other file-sharing services “as factually erroneous”, “unprofessional” and “borderline incompetent.” In addition, academics have shown that due to shoddy technique even a network printer can be accused of sharing copyrighted files on BitTorrent.

Sophisticated Jane Doe, a critic of the copyright troll cases, is optimistic that the defendants will emerge as winners of the trial.

“The beauty of a Bellwether trial design is both in its pace and in its binding power: finally, trolls’ evidence (or lack thereof) will be tested. You won’t be surprised to learn that I really doubt that trolls will present enough evidence to declare victory; that’s why I’m excited and full of expectations,” she writes.

Considering what’s at stake, it would be no surprise if parties such as the Electronic Frontier Foundation (EFF) are willing to join in. They are known to get involved in crucial copyright troll cases, siding with the defendants. We asked the group for a comment, but have yet to receive a response.

On the other side, Malibu Media may get help from other copyright holders who are engaged in mass-BitTorrent lawsuits. A ruling against the copyright holder may severely obstruct the thus far lucrative settlement business model, meaning that millions of dollars are at stake for these companies.

Without a doubt, the trial is expected to set an important precedent for the future of mass-BitTorrent lawsuits in the U.S. One to watch for sure.

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