Judge rejects copyright trolls' BitTorrent conspiracy theory By Timothy B. Lee Ars Technica
April 2, 2012 http://arstechnica.com/tech-policy/news/2012/04/judge-rejects-copyright-trolls-bittorrent-conspiracy-theory.ars A federal judge has rejected attempts by several copyright holders to compel ISPs to hand over the identifying information of numerous customers without actually filing copyright lawsuits against them. The Friday opinion by James F. Holderman of the Northern District of Illinois is the latest sign of growing judicial skepticism toward the new wave of copyright trolling campaigns. While mass litigation against illicit file sharing was pioneered by the recording industry, recent lawsuits have often focused on the sharing of pornography rather than music. Many would-be defendants, regardless of their actual guilt, are anxious to settle to spare themselves the embarrassment of having their names publicly associated with online porn. Judge Holderman notes that as this dynamic has become clear, the courts have become skeptical of plaintiffs who appeared more interested in harvesting contact information than actually pursuing lawsuits. For example, in some jurisdictions, judges have insisted that plaintiffs sue defendants one at a time, incurring court filing fees for each lawsuit. Some judges have also insisted that each lawsuit be limited to defendants in one specific judicial district rather than targeting defendants across the country. In response to this "stiffening judicial headwind," as Holderman puts it, some litigators have adopted a new tactic: sue just one Internet user, but use that lawsuit as a pretext to subpoena other defendants who had participated in the same BitTorrent swarm. The plaintiffs in these lawsuits claim that the other users had participated in a "conspiracy" to assist one another in distributing particular copyrighted works. But courts increasingly find this tactic suspect, and Holderman rejected it, noting that conspiracy charges require evidence of an agreement among the purported conspirators. The mere fact that several BitTorrent users' computers communicated with one another does not constitute a conspiracy among the users, he said. "BitTorrent users remain anonymous to other BitTorrent users, and have no connection to them beyond the mere fact that they downloaded the same file," Holderman wrote. "It is therefore not a reasonable calculation that the individuals connected to the subpoenaed IP addresses will have any discoverable information related to the current defendants." Holderman's ruling, on top of last week's ruling in Florida, suggests growing judicial hostility toward the copyright trolling business model. The courts are designed to decide the legal merits of significant disputes between parties. Yet the monetary harm of any specific act of file-sharing is so small—and the legal process is so expensive—that it's rarely in the interests of copyright holders to actually litigate against even guilty defendants. So instead, some copyright holders use the threat of expensive litigation to extort settlements. Because the copyright holder's threat is based on the cost of litigation (and risk of public embarrassment) more so than the damages a defendant would face in the event of a loss, innocent defendants have virtually as much incentive to settle as guilty ones do. That's not how things are supposed to work, and more and more judges are refusing to play along. Further reading Judge Holderman's decision (ia600803.us.archive.org) http://ia600803.us.archive.org/25/items/gov.uscourts.ilnd.265453/gov.uscourts.ilnd.265453.23.0.pdf _______________________________________________ Medianews mailing list [email protected] http://lists.etskywarn.net/mailman/listinfo/medianews
