Mass-BitTorrent lawsuits have been dragging on for more than two years in the US, involving more than a quarter million alleged downloaders.
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, allowing them to ask Internet providers for the personal details of the alleged offenders.
The problem, however, is that the person listed as the account holder is often not the person who downloaded the infringing material. Or put differently; an IP-address is not a person.
Previous judges who handled BitTorrent cases have made observations along these lines, but none have been as detailed as New York Magistrate Judge Gary Brown was in a recent order.
In his recommendation order the Judge labels mass-BitTorrent lawsuits a “waste of judicial resources.” For a variety of reasons he recommends other judges to reject similar cases in the future.
One of the arguments discussed in detail is the copyright holders’ claim that IP-addresses can identify the alleged infringers. According to Judge Brown this claim is very weak.
“The assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time,” he writes.
“An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones.”
“Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function – here the purported illegal downloading of a single pornographic film – than to say an individual who pays the telephone bill made a specific telephone call.”
The Judge continues by arguing that having an IP-address as evidence is even weaker than a telephone number, as the majority of US homes have a wireless network nowadays. This means that many people, including complete strangers if one has an open network, can use the same IP-address simultaneously.
“While a decade ago, home wireless networks were nearly non-existent, 61% of US homes now have wireless access. As a result, a single IP address usually supports multiple computer devices – which unlike traditional telephones can be operated simultaneously by different individuals,” Judge Brown writes.
“Different family members, or even visitors, could have performed the alleged downloads. Unless the wireless router has been appropriately secured (and in some cases, even if it has been secured), neighbors or passersby could access the Internet using the IP address assigned to a particular subscriber and download the plaintiff’s film.”
Judge Brown explains that the widespread use of wireless networks makes a significant difference in cases against file-sharers. He refers to an old RIAA case of nearly a decade ago where the alleged infringer was located at a University, on a wired connection offering hundreds to tracks in a shared folder. The Judge points out that nowadays it is much harder to pinpoint specific infringers.
Brown also cites various other judges who’ve made comments on the IP-address issue. In SBO Pictures, Inc. v. Does 1-3036 for example, the court noted:
“By defining Doe Defendants as ISP subscribers who were assigned certain IP addresses, instead of the actual Internet users who allegedly engaged in infringing activity, Plaintiff’s sought-after discovery has the potential to draw numerous innocent internet users into the litigation, placing a burden upon them that weighs against allowing the discovery as designed.”
Judge Brown concludes that in these and other mass-BitTorrent lawsuits it is simply unknown whether the person linked to the IP-address has anything to do with the alleged copyright infringements.
“Although the complaints state that IP addresses are assigned to ‘devices’ and thus by discovering the individual associated with that IP address will reveal ‘defendants’ true identity,’ this is unlikely to be the case,” he concludes.
In other words, the copyright holders in these cases have wrongfully accused dozens, hundreds, and sometimes thousands of people.
Aside from effectively shutting down all mass-BitTorrent lawsuits in the Eastern District of New York, the order is a great reference for other judges dealing with similar cases. Suing BitTorrent users is fine, especially one at a time, but with proper evidence and not by abusing and misleading the courts.