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The end of digital downloading copyright suits?

On May 4, 2011, in Copyright, File sharing, Litigation, Privacy, United States, by Jorge Espinosa

Every month across the United States large media companies or business associations file dozens of lawsuits accusing individuals of copyright infringement based solely on claims that film or music files were downloaded to their IP-address. An IP-address is a unique number associated with a particular online account.  Over the last few years tens of thousands of suits have been filed on similar grounds, many resulting in settlements of thousands of dollars.  Often the individual defendants are forced into such settlements by fear of statutory damages and costs of litigation even where they feel that they were wrongly accused.  As a result, many commentators have referred to these lawsuits as unfair and a legal a shakedown.

A new decision issued on April 29, 2011, by a judge in the Eastern District of Illinois brings into question the future of such suits.  In VPR Internationale v. Does 1-1017, (2:2011-cv-02068) Judge Harold A. Baker denied a Canadian adult film company’s request to subpoena ISPs for the personal information connected to the IP-addresses of their subscribers.  The court reasoned that since IP-addresses do not equal persons, no defendants had been identified in the suit and there was no adversarial process.  Since, under federal rule of civil procedure rule 26(d)(1), no discovery may be conducted before the parties to the suit have conferred absent special leave from the court, the judge reasoned that VPR could not go on an ex-parte fishing expedition.

The Court’s concern clearly went beyond the mere procedural issue.  Judge Baker cited a recent child porn case where the U.S. authorities raided the wrong people, because the real offenders were piggybacking on their Wi-Fi connections. The judge noted that, based on this example, defendants in VPR’s case may have nothing to do with the alleged offense either.  “The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”

The fact that the suit involved the downloading of adult content was a significant factor in the case.  Judge Baker noted that “the embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether the plaintiff VPR has competent evidence to prove its case.”

Baker concludes by citing another case for the proposition that until at least one defendant is served the Court lacks personal jurisdiction over anyone.  The Court would not support a “fishing expedition” for subscriber information under the circumstances.

VPR responded to the initial denial of the subpoenas by asking for certification of the following question for interlocutory appeal:

Defendants’ identifies are unknown to the  Plaintiff.  Instead, each Defendant is associated with an Internet Protocol (IP) address.  Internet Service Providers (ISPs) know identity and contact information associated with each IP address.  Is the Plaintiff to entitled to discover this information by serving ISPs with subpoenas duces tecum under Fed. R. Civ. P. 45?

The Court refused to certify the question.  We will have to wait to see if other courts follow this decision.