A judge in the United States has denied attempts by plaintiffs in three BitTorrent mass lawsuits to obtain the identities of individuals behind IP addresses. Chief United States Magistrate Judge Leo T. Sorokin said the plaintiffs had shown no interest in presenting a plan that would identify actual infringers and were instead relying on an action that “..smacks of a bad faith effort to harass the third-party subscriber.”
The three lawsuits in question, all presented by the same attorney, follow a familiar pattern. Some time ago the copyright holders in the cases – Discount Video Center and Patrick Collins – gathered IP addresses in BitTorrent swarms that they claim are connected to copyright infringement of their adult content.
Of course, none of the plaintiffs know the identity of the alleged infringers, only the IP addresses in the swarms. This is problematic. While the IP addresses can usually be traced back to a certain ISP account linked to a bill payer, that person is not necessarily the infringer and only infringers can be held liable.
Nevertheless, the plaintiffs embarked on a discovery process in order to replace the original ‘John Does’ on the complaint with the names of the ISP account holders, not the actual infringers.
“The Plaintiffs in these cases evidence no interest in identifying the infringers. They have not proposed a discovery plan aimed at identifying the infringers they have sued,” writes Chief United States Magistrate Judge Leo T. Sorokin.
“Rather, the Plaintiffs request that the Court order disclosure of the third-party subscribers’ names so that the Plaintiffs might settle or dismiss their cases on an informal basis.”
Judge Sorokin goes on to explain that not only will the discovery requested by the plaintiffs fail to identify the actual infringers, but the plaintiffs have failed to request leave to take depositions as they said they would during a hearing earlier in the year.
“.. The omission of any written request for depositions in the Plaintiffs’ renewed motions for discovery speaks volumes about the Plaintiffs’ lack of interest in actually litigating these cases,” writes Judge Sorokin.
Then what follows in the ruling is a shining example of how rightsholders have to fish for additional information beyond an IP address in order to identify an actual infringer. The Judge notes that not only did the copyright holders fail to put forward a plan that could do so, but they were not able to explain to the court what information they would need to make that a possibility either.
“Well, I don’t think there is a specific set of information we need,” plaintiffs’ attorney explained. “I’d like to keep this as least burdensome as possible and as least costly as possible. Opening communications between me and the Does or me and the subscribers is, I think, the best course of action.”
In other words, give me the name of a subscriber and once I have that I’ll force them to either pay up, implicate someone else, or suffer an extremely expensive lawsuit. But the Judge was having none of it.
“The Plaintiffs’ proposal – i.e., that the Court permit the Plaintiffs to subpoena the names
of the subscribers and that the Court then leave it to the Plaintiffs to figure out the rest pursuant to informal communications – is unacceptable,” he wrote. “The governing case law permits ex parte discovery in the presence of a discovery plan tailored to the identification of the defendants emphasis ours.
Judge Sorokin also clearly understands that interest in actually taking a named case to court is virtually nil, and that all plaintiffs’ are interested in are cash settlements.
“Plaintiff Patrick Collins, Inc. has sued at least 11,570 John Doe Defendants in litigation around the country without ever serving a single defendant,” the Judge wrote.
In the Discount Video case, the Judge also had harsh words. He said that the company had an intent to file a complaint against a Doe, even though it has no idea of the infringer’s identity.
“Such an action smacks of a bad faith effort to harass the third-party subscriber by causing him or her to expend further legal fees in a brand new action, which would merely repeat all that has occurred to date,” he wrote.
“The course of action the Plaintiff has stated it intends to pursue also suggests an improper effort to engage in judge shopping and evidences a disregard for the Court’s limited public resources.”
Judge Sorokin concludes with an attack on plaintiffs’ tendency to say one thing and then do another, including suing infringers but then informing subscribers that they had been sued, saying they would hold subscribers secondarily liable but then backing away, and then promising to litigate cases but never doing so.
All things considered the Judge concluded by denying the request for ex-parte discovery.Tweet this!