Over the past two decades, online piracy has proven a massive challenge for the entertainment industries.
Some copyright holders have tried to go after individual pirates in court but, increasingly, third-party intermediaries are targeted as well.
There are several lawsuits pending in US courts where rightsholders accuse Internet providers of not doing enough to stop piracy. One of the main allegations is that ISPs fail to terminate accounts of repeat infringers in ‘appropriate circumstances’, as is required under the DMCA.
These lawsuits were pioneered by music companies that had some success on this front, including a $1 billion verdict against Cox. More recently a group of filmmakers adopted a similar strategy by suing several Internet providers, including WOW!.
Filmmakers sued WOW!
WOW! is being sued by a group of smaller movie companies, including Millennium Media and Voltage Pictures. They accuse the ISP of failing to terminate the accounts of subscribers who were repeatedly flagged for sharing copyrighted material and hold WOW! liable for these pirating activities, which could lead to millions of dollars in damages.
The ISP responded a few weeks ago with a motion to dismiss the case. Among other things, the company argued that an IP address is not sufficient to prove that subscribers downloaded or shared any infringing material. The filmmakers opposed this motion, which has yet to be decided on by the Colorado federal court.
In the meantime, another issue started brewing as well. Both sides are gathering evidence so they’re ready if the case moves forward. As part of this process, the filmmakers demanded the personal details of roughly 14,000 subscribers whose accounts were allegedly used to pirate content.
WOW! objected to this request, arguing that the names and addresses of its subscribers are irrelevant to the core question of whether it reasonably implemented a repeat infringer policy.
The filmmakers disagreed, however, and pointed out that this information will allow them to cross-check to determine whether the ISP indeed notifies its subscribers and terminates accounts as a result.
Pirates’ Personal Details Are Relevant
After hearing both parties, United States Magistrate Judge Michael E. Hegarty agrees with the rightsholders that the personal details of alleged pirates are indeed relevant in this case. Therefore, they must be disclosed.
“Plaintiffs want to be able to, in essence, cross-check whatever Defendant produces with information from the subscribers themselves,” Judge Hegarty writes. “Regardless of whether Plaintiffs are ultimately correct, the Court agrees that the subscribers’ personally identifiable information is relevant.”
WOW! also countered that the request was disproportional and said it will take hundreds of hours to match the 34,031 copyright complaints to roughly 14,000 subscribers. That would simply take an unreasonable amount of resources.
In response, the filmmakers suggested limiting their request to reduce the burden. Instead of all subscribers, handing over information on the 375 top pirating unique IP addresses would be sufficient.
Targeting 375 Subscribers is Appropriate
According to the court, the original request would indeed have been too much. However, the filmmakers’ concession makes it more appropriate.
“This is a more reasonable and proportional request, particularly since Plaintiffs currently calculate their statutory damages at $13,950,000,” Judge Hegarty notes in his order.
This means that WOW! has to disclose the identities of the 375 subscribers that were most often flagged for copyright infringement. These people will likely be approached by the filmmakers to provide further information.
Initially, the filmmakers also wanted to leave the option open to sue these subscribers directly in separate lawsuits. However, this option was ruled out in a mutually agreed protective order.
This order clarifies that all protected information “shall be used solely for the purpose of preparation, trial, and appeal of this litigation and for no other purpose.”
A copy of United States Magistrate Judge Michael E. Hegarty’s order permitting the disclosure of subscriber information is available here (pdf)