In federal courts all across the U.S. hundreds of thousands of alleged BitTorrent users have been targeted by copyright holders.
In recent months many of these defendants walked free because various judges ruled – for a wide range of reasons – that copyright holders should file individual lawsuits instead of joining many in one suit to save costs.
This week the attorney for adult company K-Beech, bankruptcy expert James C. White, submitted a rather incoherent declaration to the court where he argues the opposite.
In response to motions from defendants, White explains that these mass-lawsuits are warranted because not all the IP-addresses they filed suit against are actually targets worth pursuing. To keep the costs low, joining these IP-addresses in one suit is therefore a practical (and financial) consideration.
Although the above holds no ground as far as the law is concerned, the lawyer does review a few interesting details about the IP-addresses they target. As it turns out, even undercover cops have been caught red-handed, downloading and sharing porn.
“In similar copyright infringement suits filed by Plaintiff’s lawyers across the country, a police department running a covert investigation was identified as a John Doe defendant, and Plaintiff voluntarily dismissed that John Doe,” White explains.
Besides undercover cops, the adult entertainment company also has a policy of dismissing their cases against military personnel stationed oversees, according to the lawyer. The dead and famous are not settlement material either.
“Several of the John Doe Defendants have died prior to being identified. Several John Does have been public or political figures who Plaintiff did not choose to sue,” White writes.
Although it’s no surprise that dead people are not the easiest group to settle with, it’s unclear why politicians and public figures have to be excluded. This group generally speaking can afford to pay a settlement fee, and as the settlements are undisclosed the press would never find out. It’s also possible, however, they may just put up an embarrassing and potentially expensive fight.
The lawyer then goes on to name several instances where it’s impossible for them to find out who the real infringer is. This causes even more IPs to be dropped from the initial list of defendants.
“Myriad IP addresses trace back to multiple dwelling units such as apartment complexes, universities, coffee shop Wifi hotspots, casinos and domestic violence shelters,” White continues. “IT personnel at these entities have often tried to trace hits to actual individuals, but it most often proves impossible.”
And then there’s the issue of “data loss.” Apparently Internet providers can’t cough up details on more than 10% of their subscribers. K-Beech’s lawyer discovered this serious issue, which means the administration at all ISPs must be a complete mess.
“Plaintiff loses 10% -15% of the Doe identities it subpoenas nationally due to ISP data failure or deletion issues,” he writes.
The potential pool of defendants is then even further reduced because Internet subscribers get new IP-addresses every so often. As a result, K-Beech sued the same person so many times that it couldn’t even keep count.
“Due to the dynamic ISP [sic] issue, Plaintiff has sued the same Doe Defendant innumerable times in several joined suits across the country,” White explains.
Of course none of the above is a very good legal argument for joining this many defendants in one lawsuit. Not in legal terms at least. But in yet another twist White argues that it’s not only pragmatic to file a mass-lawsuit, but that it is also in the best interests of their business model.
“Increasing the costs associated with this litigation by forcing Plaintiffs to file individual suits would only increase the settlement demands and make settlements less probable.”
That would be a shame of course, as it would result in a far less profitable scheme. But would a judge see that as a valid legal argument? We doubt it.
All in all the above shows that copyright holders are quite selective in picking their targets. It also showed BitTorrent users who don’t have money to settle their case or fight it, that there’s another option to make it go away.
Join the army…