Anti-piracy in the Film Industry, Joinder, Personal Jurisdiction Issues in Copyright Infringement on Torrent Platforms
Posted by: joseph on Aug 26, 2010 | Tagged in: Untagged
A new study has stated that only 0.3% of files on BitTorrent file sharing services are confirmed to be legal:
With such widespread illegal file sharing, some rights holders have turned to the courts looking for a remedy. Among the handful of recently filed cases, Achte/Neunte Boll Kino Beteiligungs Gmbh & Co KG and West Bay One, Inc. have filed copyright infringement lawsuits against thousands of anonymous doe defendants for the films Far Cry and The Steam Experiment a/k/a The Chaos Experiment, respectively – U.S. District Court for the District of Columbia Case Nos. 1:10-cv-00453-RMC and 1:10-cv-00481-RMC.
However, these cases recently came under attack by “amicus” organizations claiming to protect the rights of the doe defendants. The Electronic Frontier Foundation, Public Citizen, American Civil Liberties Union Foundation, and American Civil Liberties Union of the Nation’s Capital were permitted to enter the case as amici curiae in their effort to quash subpoenas served on various internet service providers that seek the identifying information of the doe defendants. These organizations argued that the plaintiffs were not entitlement to discovery of the identities of the doe defendants because (1) the court lacked personal jurisdiction, (2) all the doe defendants were improperly joined, and (3) the First Amendment required a heightened showing from the plaintiffs to obtain the discovery.
In a very unusual step the court, Honorable Judge Rosemary M. Collyer presiding, considered these arguments and held a lengthy hearing allowing amicus parties to brief the issue and appear in person presenting oral argument. In the end the court rejected all of the amicus arguments and allowed the plaintiffs to proceed with their cases as styled. The court summarily dismissed the First Amendment argument, noting that the doe defendants’ alleged conduct is not speech but rather the act of illegal copying and distribution of copyrighted material. The court considered significantly more argument when it came to the interplay of personal jurisdiction and joinder.
The court was not persuaded by the amicus organizations’ attempts to summarily determine personal jurisdiction for each doe defendant. The amicus organizations presented the same argument, and nearly identical declaration, that they supplied in Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), where that court similarly rejected the personal jurisdiction argument. As argued by the Thomas Dunlap for the plaintiffs, the offered technique of looking up the doe defendants’ IP addresses on publicly available databases provided a “likely” venue for the doe defendants, at best, and by no means presents sufficient evidence for anyone to determine the personal jurisdiction of any given doe defendant. Despite third party Time Warner’s statements that it had no clients in the Washington, DC jurisdiction, Judge Collyer further agreed with Dunlap’s two part argument that the nature of torrent file-sharing means that computers across the country simultaneously share information on one file by the thousands thus blurring the jurisdictional lines.
Similarly, the court did not agree that the doe defendants had been improperly joined at this stage of the lawsuit. Judge Collyer followed her colleague’s opinion, Honorable Judge Colleen Kollar-Kotelly, in Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1 (D.D.C. 2008), that determination of the joinder issue is premature without first knowing the doe defendants’ identities and the actual facts and circumstances associated with their conduct.
Overall, the court recognized that the plaintiffs have a very legitimate interest in protecting their copyrighted materials and that the court has to take into account protecting the legal rights of the plaintiffs. To allay any concerns that the doe defendants would not be aware of the claims against them and that their identifying information was being sought from their ISPs, the plaintiffs agreed with the court that the ISPs would provide a standard notice.
