So-called copyright troll cases in the United States, United Kingdom and Germany in particular, are causing misery for hundreds of thousands of people.
The problems are many. The cash claims from copyright holders against those they claim have unlawfully shared their content online are not only aggressive, excessive and cynical, but worse still they often target the innocent.
Copyright trolls, many of them from the adult industry, know they are targeting the subscribers of Internet connections when they seek to discover who is behind an IP address. They also know that there is a significant chance that the bill payer isn’t the actual infringer.
Sadly, they really don’t care, so with this in mind it’s always nice when a court does.
In the case of Third Degree Films v Does 1-110, the adult studio went to the District Court in New Jersey seeking discovery of the identities of 110 alleged BitTorrent pirates. As usual the company wanted the judge to order the Does’ ISPs to hand over their personal details including names, addresses, telephone numbers, e-mail and MAC addresses. What would follow is the usual pay-up-or-else threats.
The first problem highlighted by the judge was on the issue of joinder. Citing an “almost identical” earlier case presided over by Judge Faith S. Hochberg, Judge Mark Falk said he agreed entirely with the decision to disallow joining all alleged infringers in one lawsuit. On this basis he kicked out 109 of the 110 Does in the Third Degree complaint.
So, with just one potential defendant left, could the adult studio pull back a late win against this lone individual? In one word, no. Judge Falk, like a growing number of judges in other jurisdictions, recognized that an IP address does not identify an individual.
“Indeed, the infringer might be someone other than the subscriber; for instance, someone in the subscriber’s household, a visitor to the subscriber’s home or even someone in the vicinity that gains access to the network,” he wrote in his ruling.
Worse still, Judge Falk wrote, the weak nature of this kind of evidence has the potential to lead to the identification of a person who is entirely innocent.
“Plaintiff’s sought after discovery has the potential to ensnare numerous innocent internet users into the litigation placing a burden on them that outweighs Plaintiff’s need for discovery as framed,” the Judge wrote.
“Granting Plaintiff’s motion has the potential to permit Plaintiff to obtain detailed personal information of innocent individuals. This could subject an innocent individual to an unjustified burden.”
Recognizing that copyright trolls do face challenges when trying to identify actual infringers, Judge Falk threw Third Degree a lifeline in their attempts to properly identify the single remaining Doe.
“The Court will permit Plaintiff to submit a new motion for expedited discovery as to John Doe 1 setting forth a detailed plan that addresses the Court’s concern regarding potentially innocent individuals, as expressed in this Order,” he wrote.
In other words, if the movie studio could convince the court they were asking for the identity of the actual infringer and not just the person who pays the Internet bill, they might be successful in getting permission to extract their details from their ISP.
But it seems that was beyond Third Degree films’ abilities. The very next day they withdrew the entire case. Trolls 0, Common Sense 1.