This particular case, Hard Drive Productions, Inc. -v- Does 1-90, sees the well-known porn company plaintiff follow the now well-trodden copyright troll path.
Gather IP addresses from BitTorrent networks and go to court to obtain the physical identities of those alleged to have infringed their copyrights. From there, approach account holders with an offer to settle for a couple of thousand bucks to make (in almost all cases) an imaginary lawsuit go away.
In this case Hard Drive asked the court to force ISPs to hand over the details of 90 Internet subscribers alleged to have downloaded and shared the movie “Amateur Allure – Natalia” at some point during a 63 day monitoring period.
The court noted that discovery can only be permitted with a court order and after showing “good cause”. The “good cause” standard can be met on four conditions:
(1) the plaintiff can identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court;
(2) the plaintiff has identified all previous steps taken to locate the elusive defendant;
(3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and
(4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.
But Judge Howard R. Lloyd had problems, particularly when considering whether the requested early discovery would be “very likely” to reveal the identities of the Doe defendants.
Hard Drive had previously stated that discovery would allow it to “fully identify” each BitTorrent user suspected of violating its copyrights. However, as Judge Lloyd pointed out, while the ISP account holder may have been the infringer, he may also be merely the bill payer. Indeed, anyone with access to the IP address could be the actual infringer.
The court then went on to list all seven of the subsequent “fishing exercise” processes Hard Drive goes through in order to find out who did infringe when the account holder isn’t the person they’re looking for. It was all too much for the court.
“It is abundantly clear that plaintiff’s requested discovery is not ‘very likely’ to reveal the identities of the Doe defendants. Indeed, plaintiff admitted at the hearing that neither it nor any other plaintiff it is aware of has ever served a single defendant in one of these cases where early discovery has been granted,” Judge Lloyd wrote.
And when it came to “good cause” things didn’t improve either.
The plaintiff in the case needed to show all Does to be in the State of California but Hard Drive shot itself in the foot when it admitted that its IP geo-location tool was “…only truly reliable when predicting the country in which an IP address is located.”
Confirming the above, Hard Drive admitted that in other cases where discovery was granted it later found that some of the ISP subscribers did not live in the state where the lawsuit was brought.
The court also had problems with 90 Does being connected together in one lawsuit after Hard Drive admitted that it had no evidence to show that the BitTorrent users ever shared the movie between each other.
“Plaintiff has not shown that the defendants acted in concert simply by appearing in the same swarm at completely different times,” said Judge Lloyd. “Therefore, the court cannot find that ‘a single transaction or series of closely related transactions’ connects these 90 Does and makes joinder proper.”
The court denied Hard Drive its application for discovery of the Doe’s identities and ordered all but one defendant to be severed from the lawsuit. If Hard Drive wants to pursue them it will have to file individual complaints against them.
Judge Lloyd’s summing up will be music to the ears of those who oppose so-called copyright trolls.
“The court realizes that this decision may frustrate plaintiff and other copyright holders who, quite understandably, wish to curtail online infringement of their works. Unfortunately, it would appear that the technology that enables copyright infringement has outpaced technology that prevents it,” Judge Lloyd wrote.
“The court recognizes that plaintiff is aggrieved by the apparent infringement and is sympathetic toward its argument that lawsuits like this one are the only way for it to find and stop infringers. However, the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net).
“Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting ‘settlement’ payments from persons who may or may not be infringers. This the court is not willing to do,” Judge Lloyd concludes.