BitTorrent users now have even more reason to be concerned if they are targeted in “John Doe” lawsuits for copyright infringement. In a recent case, 38 BitTorrent users, known only by their IP addresses and identified as John Does, were sued as a group. Three of the John Does sought to quash the subpoenas issued to their ISPs seeking the names and contact information of the BitTorrent users. A Boston federal court judge denied the motions, ruling that BitTorrent users do not have a reasonable expectation of privacy in the contact information that they give to their ISPs. The judge also allowed the case to proceed against all 38 John Does, finding that the claims arose out of the same transaction or occurrence (or series of transactions or occurrences), and that there are questions of law or fact common to all defendants.
Finally, in perhaps the most interesting part of the opinion, the judge denied the BitTorrent users’ request to remain anonymous even in light of the controversial and potentially embarrassing nature of the copyright infringement allegations.
Interested? Read on…
Allegations of Infringement
Liberty Media Holdings, LLC sued the colorfully named “Swarm Sharing Hash File AE340D0560129AFEE8D78CE07F2394C7B5BC9C05” and John Does 1 through 38, alleging infringement of the copyrighted motion picture “Corbin Fisher Amateur College Men Down on the Farm.” In case you are wondering, yes, the movie is reported to contain “hardcore” "homosexual pornography." The plaintiff alleged that the 38 John Does acted collectively to reproduce and distribute the movie over the internet using BitTorrent file transfer protocol. The case was assigned to Judge William G. Young in Boston.
What is BitTorrent?
In a nutshell, BitTorrent technology allows users to download large files (such as movies) in small pieces over the internet by obtaining the pieces from multiple sources. An excellent technical description appears in Wikipedia, and Judge Young’s opinion provides a good overview. The 38 John Does were alleged to have participated in a BitTorrent “swarm” that engaged in the illegal uploading and downloading of the plaintiff’s motion picture over the internet using the BitTorrent protocol.
The Plaintiff's Subpoenas to the ISPs
Immediately after filing the complaint, the plaintiff sought and obtained an order ex parte – that is, an order obtained from the judge without giving advance notice to the defendants – allowing the plaintiff to serve subpoenas on three ISPs that were servicing the allegedly infringing IP addresses. The subpoenas sought to require the ISPs to reveal the names and subscriber information of the 38 John Does who were known to the plaintiff only by their IP addresses. Notably, none of the three ISPs objected to the subpoenas, and indeed one of them (RCN) had complied with the subpoena by the time the objections of the John Does were decided by Judge Young. The ISPs gave the John Does notice of the subpoena, and the John Does had 21 days to object or else have their names and subscriber information turned over to the plaintiff.
Three of the 38 John Does, while still remaining anonymous, hired attorneys to file motions to quash the subpoenas to the ISPs. The motions alleged various deficiencies in the subpoenas and in manner in which all 38 John Does were sued together in the same action. Judge Young denied the motions across the board.
Plaintiff Established a Prima Facie Case of Copyright Infringement
First, the judge ruled that the plaintiffs had stated a prima facie claim for copyright infringement, despite the fact that little was known about the specific actions taken by any particular defendant, because the plaintiff’s investigator had uncovered proof that the unique IP addresses of the 38 John Does were engaged in the unauthorized downloading and distribution of the AE3 Hash associated with the plaintiff’s motion picture file.
No Expectation of Privacy in Subscriber Data Given to ISPs
Second, the judge found that the 38 John Does did not have standing to raise procedural objections to the plaintiff’s subpoenas to the ISPs, and moreover that they did not have any reasonable expectation of privacy in the identifying information that they had provided to their ISPs. Citing to other cases, Judge Young explained that “[i]nternet subscribers do not have a reasonable expectation of privacy in their subscriber information - including name, address, phone number, and email address – as they have already conveyed such information to theirs ISPs.” Stated another way, because “[i]nternet subscribers share their information to set up their internet accounts,” the subscribers “cannot proceed to assert a privacy interest over the same information they chose to disclose.”
Mass Lawsuits Against BitTorrent Swarms are Okay
Third, the judge rejected the argument that it was improper for the plaintiff to sue all 38 John Does in a single lawsuit. The court found that joinder of the parties was proper, as the right to relief asserted against the defendants arose out of the same transaction, occurrence, or series of transactions or occurrences (i.e., the collective downloading and distribution of the plaintiff’s copyrighted motion picture), and that there are questions of law or fact common to all defendants.
BitTorrent Users May Not Proceed Anonymously – Unless They Are Homosexual, and Then Only Maybe
Lastly, and perhaps most devastatingly to the BitTorrent users, Judge Young ordered that the 38 John Does would be prohibited from proceeding further in the lawsuit on an anonymous basis and could no longer use pseudonyms in their court filings. Two of the John Does argued that their public identification in connection with the downloading of homosexual pornography would subject them to reputational harm, intrusion of privacy, and intrusive public scorn, and would coerce them to pay money to the plaintiff pursuant to private settlement agreements so as to avoid being publicly named. Judge Young rejected these arguments, stating, “The potential embarrassment to Does 1-38 of being associated with allegations of infringing hardcore pornography does not constitute an exceptional circumstance that would warrant allowing the defendants to proceed anonymously.” However, in an interesting twist, Judge Young went on to recognize that some courts have allowed homosexual parties to maintain anonymity in litigation, presumably due to the historical stigma associated with homosexuality. The judge indicated that he would entertain motions by individual defendants to proceed anonymously on this ground, with the caution that “The Court presently expresses no opinion on whether homosexuality continues to be a protected privacy interest warranting anonymity. If such a privacy interest exists, the Court will be careful to draw a line between the ‘mere embarrassment’ of being publicly named in a lawsuit involving hardcore pornography, which does not provide a basis for anonymity, and concern over the exposure of one’s sexual orientation. The Court presently declines, however, to grant anonymity to all of the defendants based on the generalized concerns of public scorn expressed by only two of the thirty-eight defendants.” This is a fascinating issue with obvious public policy implications, and it will be interesting to see how it unfolds.
The upshot is that the unauthorized downloading of movies and other files through BitTorrent protocol is an extremely risky business, and your ISP may not be willing or able to help you if you do it.