Judge Deals Another Setback to Mass BitTorrent Lawsuits

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US District Judge John Preston Bailey rules that simply committing the same type of copyright infringement in the same manner does not link all of the defendants together, and that each are likely to have a different defense of the claims against them. Also orders the Adult Copyright Company to narrow the eligible defendants to only those who have an IP address within the court’s jurisdiction of the State of West Virginia.
The Adult Copyright Company, the self-proclaimed “market leader in fighting piracy of adult content,” has suffered a severe setback to seven of of its mass BitTorrent lawsuits.

“In these cases — as in many others across the country — the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lumped hundreds of defendants together regardless of where the IP addresses indicate the defendants live,” notes the Electronic Frontier Foundation.

The Adult Copyright Company tried to argue that the file-sharers named in the lawsuit could be joined together under Federal Rule 20(a)(2) of Civil Procedure “based upon the Does’ use of some of the same ISPs and some of the same peer-to-peer (‘P2P’) networks to infringe the same copyright.”

US District Judge John Preston Bailey disagreed, ruling recently that simply committing the same type of copyright infringement in the same manner does not link them together for the purposes of Rule 20.

“Moreover, several courts agree that where there is no allegation that multiple defendants have acted in concert, joinder is improper,” he writes.

Judge Preston also noted that each defendant is likely to have a different defense of the charges in question, and therefore should have the opportunity to argue their individual cases on their own merits.

He cited another district court ruling which reads:

Comcast subscriber John Doe 1 could be an innocent parent whose internet access was abused by her minor child, while John Doe 2 might share a computer with a roommate who infringed Plaintiffs’ works. John Does 3 through 203 could be thieves, just as Plaintiffs believe, inexcusably pilfering Plaintiffs’ property and depriving them, and their artists, of the royalties they are rightly owed.

Judge Preston dismissed all of the subpoenas submitted so far except one, and gave the Adult Copyright Company 30 days to refile amended complaints against the individuals it wished to continue to pursue cases against.

However, he took the additional step of narrowing the eligible defendants to only those who have an IP address within the court’s jurisdiction of the State of West Virginia.

“According to testimony presented to the Court, there is a publicly-available website that allows the plaintiff to determine the physical location of each Doe’s computer at the time of the alleged copyright infringements,” reads the ruling. “Specifically, Craig Goldberg, who supervises Time Warner Cable, Inc.’s subpoena compliance team, testified that the physical location of any IP address can be determined from a simple Google search. (Nov. 30, 2010, Hearing Transcript, at 21-26). Moreover, it appears to the Court that the search for Does from West Virginia can be narrowed by eliminating the Does with ISPs that do not provide internet service within the State.”

US District Judge Rosemary Collyer dealt a similar setback to mass BitTorrent lawsuits earlier this month when she told the US Copyright Group to limit defendants to only those “whom it reasonably believes the Court has personal jurisdiction” over.

“This is the next nail in the coffin of the copyright trolls,” said EFF Legal Director Cindy Cohn. “Now that judges are starting to reject the shoddy and unfair tactics being used by the attorneys filing these cases and force plaintiffs to play by the rules, this type of mass litigation will no longer be a good business model.”

Being that judges so far have prevented copyright holder from lumping together thousands of individual BitTorrent users, the cost of litigating the cases will rise dramatically, especially if each opt for a trial instead of an out of court settlement fee.

“These lawsuits have caused massive collateral damage to the individuals targeted, due process, and the legal profession,” she added. “Copyright owners have a right to protect their works, but not at the expense of the due process rights of thousands of Doe defendants.”

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