While relatively underreported, many U.S. district courts are still swamped with lawsuits against alleged film pirates.
The copyright holders who initiate these cases generally rely on an IP address as evidence. This information is collected from BitTorrent swarms and linked to a geographical location using geolocation tools.
With this information in hand, they then ask the courts to grant a subpoena, forcing Internet providers to hand over the personal details of the associated account holder.
In most cases, courts sign off on these subpoenas quite easily, but in a recent case California Magistrate Judge Mitchell Dembin decided to ask for further clarification and additional evidence.
The case in question was filed by Criminal Productions, the makers of the 2016 movie Criminal, who are linked to the well-known pirate chasers Nu Image and Millennium Films.
The movie makers filed a complaint against a “John Doe” and list an IP-address that, according to a geolocation lookup, is linked to a location in San Diego County.
Magistrate Judge Mitchell Dembin, however, is not ready to issue a subpoena based on that information alone. Specifically, he notes that the complaint lacks details on when the geolocation effort was performed.
If the copyright holder looked up the IP-address information after the infringements the location and ISP info may not be accurate at all, as the assignment may have changed.
“It is most likely that the subscriber is a residential user and the IP address assigned by the ISP is ‘dynamic’. Consequently, it matters when the geolocation was performed,” Judge Dembin writes (pdf).
“If performed in temporal proximity to the offending downloads, the geolocation may be probative of the physical location of the subscriber. If not, less so, potentially to the point of irrelevance,” he adds.
This clarification is indeed important but has never been made before in court, as far as we know (see update).
In the original request, Criminal Productions only writes that the geolocation data was obtained prior to filing the lawsuit, but it’s not clear whether that was at the time of the infringements, which took place several months ago.
“This is not good enough. As much as four months may have passed between the alleged infringement and the geolocation,” Judge Dembin writes.
“Plaintiff must provide the date that geolocation occurred and, if performed closer to the filing date, must provide further support and argument regarding the probative value of the geolocation.”
Based on the missing information the motion for discovery was denied, meaning that Criminal Productions didn’t get the subpoena they were after.
A few days after this denial the filmmakers submitted an amended request providing additional information. However, it was still unclear when the geolocation information was actually obtained, so the Judge denied it again yesterday (pdf).
The issue raised in this case is interesting from an accuracy standpoint. Copyright holders in these cases always link an IP-address to a location and ISP, if only to show that the case was filed in the right district. However, they usually don’t say when this geolocation data was obtained.
ISPs do of course keep a log of the IP-address assignment changes. However, the right jurisdiction has to be established before a subpoena is issued.
Judge Dembin therefore suggests that rightsholders should get the information at the time of the infringement, which may be easier said than done. Geolocation databases are far from perfect and most are not updated instantly.
This is something the residents of a Kansas farm know all too well, as their house is the default location of 600 million IP-addresses, which causes them quite a bit of trouble.
Just last month EFF released a whitepaper urging courts to take caution when processing IP-address information. Whether Judge Dembin has read this is unknown, but his actions are definitely in line with the paper’s findings.
Update: SJD informed us that the timing issue was first raised in an April order. It will be interesting to see if other judges will bring it up as well.