from the this-is-becoming-more-and-more-common dept
We've been seeing a series of district court rulings around the country rejecting the copyright trolling practice of suing a whole bunch of John Does in a single lawsuit, where the clear goal is simply to identify the individuals so the copyright holder can send threatening letters and seek to extract a settlement payment. The fact is that these copyright holders are using the court as a pressure point in their business model, rather than for actual judicial purposes. It's good that it appears to be becoming common knowledge among the judiciary that these sorts of lawsuits are unacceptable. This particular case
was rejected for a bunch of good reasons, starting with the fact that moving forward with the case and granting early discovery won't actually identify the defendants, since IP addresses are such weak identifiers.
The magistrate judge, Howard R. Lloyd, notes that granting early discovery is only supposed to be done if doing so actually identifies the Does. And while the copyright holder, Hard Drive Productions, insists that it will, the judge notes that the plaintiff's own arguments prove this is simply not true. That's because they admitted that once they got the IP addresses, they would then need to contact the owner of the account and seek to identify who was actually using the account at the time.
Thus, plaintiff will only consider naming and serving a defendant after it has (1) contacted the ISP subscriber one or more times, (2) researched that subscriber and anyone else who might have used the ISP subscription, (3) met and conferred with the subscriber; (4) attempted to settle with the subscriber, (5) elicited evidence of a defense from the subscriber, (6) evaluated the credibility of that evidence, and (7) found it wanting. In addition, plaintiff also admits that in the event that a subscriber refuses to “participate” in the above process, plaintiff may need to request further discovery. It is abundantly clear that plaintiff’s requested discovery is not “very likely” to reveal the identities of the Doe defendants. Indeed, plaintiff admitted at the hearing that neither it nor any other plaintiff it is aware of has ever served a single defendant in one of these cases where early discovery has been granted.
The judge goes on to reject a number of other arguments as well, before denying the early discovery and dumping all but one of the defendants (also becoming standard in a lot of these lawsuits). But the conclusion discussion is where it gets really good:
The court realizes that this decision may frustrate plaintiff and other copyright holders who, quite understandably, wish to curtail online infringement of their works. Unfortunately, it would appear that the technology that enables copyright infringement has outpaced technology that prevents it. The court recognizes that plaintiff is aggrieved by the apparent infringement and is sympathetic toward its argument that lawsuits like this one are the only way for it to find and stop infringers. However, the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net). Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting “settlement” payments from persons who may or may not be infringers. This the court is not willing to do.
As these kinds of rulings continue to roll out of courts, hopefully a strong precedent is being set across the country that such lawsuits are simply not acceptable.
Filed Under: copyright troll, group lawsuit, john doe
