Over the past decade and a half, hundreds of thousands of alleged BitTorrent pirates were taken to court for sharing mostly video content without permission from rightsholders.
While this activity is still ongoing, at least to a degree, not all courts have welcomed this type of lawsuit.
On several occasions, courts dismissed piracy claims after ruling that “an IP address is not a person”. In 2014, for example, Florida federal court Judge Ursula Ungaro dismissed a lawsuit ruling that IP address evidence can’t identify the person who allegedly shared a pirated movie.
Geolocation software might make a reasonably accurate estimate of where the associated account holder lives, but even if an exact home address is known, an IP address can’t identify the person who used it to pirate.
“Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright,” Judge Ungaro explained.
Filmmakers who use IP addresses as piracy evidence are generally not keen on this conclusion, especially when it gets in the way of their legal efforts. Intriguingly, however, several movie companies now hope to use it to gain an advantage in their dispute with Reddit.
Film Companies: An IP address is Not a Person
The film companies, which include Voltage Holdings, are no strangers to the IP address argument. They previously filed lawsuits against alleged BitTorrent pirates based on IP address evidence that didn’t result in the desired outcome.
A Canadian court, for example, concluded that while IP address evidence may link pirate activity to an internet connection, it can’t conclude that the account holder is the person who committed that offense. Or put differently: an IP address is not a person.
So, when Reddit recently defended the anonymous speech of its users in a piracy-related case, arguing that an IP address is “identifying information,” Voltage knew what its response should be.
In a reply, the filmmakers counter that sharing the IP addresses of the Reddit users doesn’t violate their anonymous speech rights. IP addresses don’t “unmask” the Redditors, they argue.
“Movants are not ‘unmasking’ Reddit’s subscribers. Movants’ subpoena merely requests Internet Protocol (‘IP’) address logs. An IP address is not a person,” the film companies argue, citing Judge Ungaro’s order.
“Accordingly, Reddit’s pages of arguments based upon the First Amendment standards for unmasking anonymous speakers are not applicable,” they add.
Anonymous Speech at Stake?
Reddit is concerned that the filmmakers could obtain the identities of the affected users by subpoenaing their ISP for the account holder information behind the IP addresses. While the account holders might not be the Redditors, it potentially puts their anonymity at risk.
The film companies previously said that they have no intention of going after the Redditors. Instead, they want to use their comments to show that Internet provider Frontier failed to reasonably implement a policy for terminating repeat infringers.
Since disclosing the IP addresses won’t directly identify anyone, their request can’t harm anonymous speech in any way, they add.
This reply shows that the request has multiple angles and the tables can be turned be either side. What’s helpful, however, is that the film companies have shared information on want they intend to do with the requested IP addresses.
Narrowing Down the Search
In theory, the Redditors’ households can be potentially identified using Reddit’s IP address logs via a follow-up subpoena to their ISP. However, the filmmakers suggest that identities are not essential to their request. Instead, they see most value in the following information.
1. Information that shows the comments were made by people who used a Frontier connection to boast about piracy.
2. Identifying the number of copyright infringement notices rightsholders sent to Frontier for the associated IP addresses.
Neither of these points require the filmmakers to know who the Redditors or associated subscribers are. Then again, without legal guarantees, Reddit may still be concerned that the filmmakers will do more.
Alternatives?
Ultimately, the court will reach a decision after weighing the First Amendment rights of the Redditors against the interests of copyright holders. Previously, the balance tipped in favor of Redditors, twice.
In the present dispute the rightsholders only seek IP addresses, not the names and email addresses of Redditors. But whether that will change things remains to be seen.
A key reason for the court siding with Reddit previously was that the filmmakers have other options to get similar evidence. The movie companies already have a list of IP addresses that allegedly pirated their films, for example.
Reddit also pointed this out in the current dispute, adding that the filmmakers already have a subpoena in hand to obtain the associated subscriber information from Frontier directly.
The filmmakers don’t dispute that they are able to get information on Frontier’s pirating subscribers. They indeed have a subpoena in hand, but note that this is limited to the subscribers who shared their films.
Given the already available options, the key question is whether the Reddit comments are unique and valuable enough as evidence in the Frontier case, to require Reddit to share the posters’ IP addresses.
The filmmakers’ reply indicates that they are open to a compromise. They suggest that, at minimum, they would like to verify that the Redditors were using a Frontier connection.
“Movants intend to show that these posts were made from same Frontier IP addresses where multiple notices of infringement were sent to Frontier. At the very least, Movants need to show that these posts were made from Frontier IP addresses for the Court to consider them as evidence,” they write.
Both the film companies and Reddit will get the opportunity to explain their motivations and concerns during a forthcoming hearing, after which the court will likely issue its decision.
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A copy of the reply from Voltage Holdings, LLC; Screen Media Ventures, LLC; Killing Link Distribution, LLC; Family of the Year Productions, LLC; and Laundry Films, Inc is available here (pdf)
