Copyright Infringement Litigation Over BitTorrent File Sharing: Truth or Troll?

Stephen Carlisle July 2, 2014

On April 14, 2014, the second episode of the second season of the popular television series Game of Thrones was televised on the HBO cable network. Within hours of the telecast, a digital copy was available on the Internet via the software known as Bit Torrent. According to the website Torrent Freak, a new record of 193,000 people participated in sharing a single copy. ¹ Ultimately, within hours after being aired, over 1.5 million people had obtained a copy, all without paying a penny to HBO, or the creators of the show.

This is, of course, copyright infringement, and on a massive scale. How a copyright owner might seek to gain some redress has proven very problematic for the court system to handle. In order to understand the points raised by this article, we need to understand how Bit Torrent works. The following is from a BitTorrent case ² in which Judge Thomas Ludington briefly and succinctly sums up how it works:

A file transfer begins “when one user accesses the Internet through an ISP and intentionally makes a digital file of a work available to the public from his or her computer. This file is referred to as the first ‘seed.’ Other users, who are referred to as ‘peers,’ then access the Internet and request the file. These users engage each other in a group, referred to as a ‘swarm,’ and begin downloading the seed file. As each peer receives portions of the seed, that peer makes those portions available to other peers in the swarm.” (citations omitted)

Elaborating on the process, BitTorrent.org explains that to download a file, a peer performs six steps:

1. Install BitTorrent (or have done so already).
2. Surf the web.
3. Click on a link to a .torrent file.
4. Select where to save the file locally, or select a partial download to resume.
5. Wait for download to complete.
6. Tell downloader to exit (it keeps uploading until this happens). (citations omitted)

BitTorrent’s key, as noted, is reciprocity—a peer not only downloads but automatically uploads pieces to other peers. “To keep the torrent operating at maximum capacity, the BitTorrent protocol uses a process called pipelining. Every active peer in a torrent maintains a continuously refreshed queue of requests for pieces, so that no connection is ever left idle after any one piece is downloaded.” (citation omitted)

In addition, the protocol has an internal mechanism that makes sure that those peers who are offering little or nothing to the torrent will get little or nothing from it. (citations omitted)

In sum, BitTorrent is a reciprocal, decentralized network—and a tough nut to crack for copyright holders:

Data is not stored on a central server. Rather, a user downloads the file in discrete segments from many different users who send data directly to one another. While trackers coordinate and assist peers in locating a swarm, the tracker itself sends out very little data. This makes BitTorrent an extremely efficient mechanism for transferring large files, and at the same time, it insulates the protocol itself from anti-piracy efforts because there are no central servers to enjoin from unlawfully distributing copyrighted content. Thus, when copyrighted data is transmitted via BitTorrent, the copyright holder is largely limited to holding the individual file sharers liable for infringement. (citations omitted)

The Judge having explained the only remedy is to sue the infringer directly, the first hurdle for the copyright owner to overcome, is the anonymous nature of the Internet. The place to which a file is sent is identified only by an Internet Protocol (IP) address, which is a series of numbers separated by periods. The only way for a copyright holder to discover the identity of the person is to file a lawsuit against anonymous defendants, sometimes by the hundreds and even thousands (identified as “John Does”), then request permission of the court to serve a subpoena on the Internet Service Provider (ISP) who assigned the IP address to the subscriber, requesting that the ISP identify the name and address of the subscriber.

While some of the copyright owners filing such lawsuits were mainstream companies such as Dallas Buyer’s Club LLC, ³ the producer of the Academy Award nominated motion picture Dallas Buyer’s Club, the most active and aggressive companies filing BitTorrent lawsuits were companies that produced hard core pornography. Some of the companies, once the identity of the subscriber was revealed, would send a demand letter notifying the person of the pending lawsuit and seeking payment in order to settle the case. In part, it was suggested that having their name publically associated with a pornographic film with a salacious title would be very embarrassing. ⁴ To some, these were aggressive litigation tactics to protect a copyrighted work. To others, the letters smacked of extortion, leading some commentators to dub them “Copyright Trolls.”

In patent law, a “patent troll” is someone who obtains or purchases a patent, but makes no significant attempt to produce a product or license a product to a third party. The patent troll makes money by filing patent infringement lawsuits, and extracting settlements from the defendants. Lawyers, and by logic, litigation, are very expensive, and a defendant might choose to pay a sum much less than the cost of litigation to make the patent owner go away.

Converting this practice to the realm of copyright was the idea behind the now discredited Prenda Law group. The principals acquired the copyright to pornographic films and then assigned them to shell corporations that were formed in places like St. Kitt and Nevis so that the fact that Plaintiff and law firm were one and the same would not be discovered. ⁵ It was even alleged that Prenda Law uploaded their own content to BitTorrent sites so as to make very easy the infringements they later sued on. ⁶ Lawsuits naming numerous John Does were filed, and once the names were discovered, aggressive settlement demands were made. In the absence of a quick settlement, the cases were voluntarily dismissed. To the knowledge of the author, none ever went to trial.

This is obviously not the case with Dallas Buyers Club, LLC, a legitimate film production company which has filed dozens of multiple “John Doe” lawsuits. ⁷

The Federal Courts have struggled mightily to come up with a useful framework for deciding these cases. Some courts have held that joining thousands of “John Does” in a single lawsuit is permissible. “Plaintiffs would face significant obstacles in their efforts to protect their copyrights from illegal file-sharers and this would only needlessly delay their cases. The plaintiffs would be forced to file 5,583 separate lawsuits, in which they would then move to issue separate subpoenas to ISPs for each defendant’s identifying information.” ⁸ Others have ruled that only a single John Doe may be named in a lawsuit since the defenses asserted were likely to be different. ⁹

The issue of whether an IP address properly identifies a person is also cause for disagreements, even within the same Federal District. In the Southern District of Florida, Judge Ursula Ungaro ruled that “There is nothing that links the IP address location to the identity of the person actually downloading and viewing Plaintiff’s videos and establishing whether that person lives in this District,” and then dismissed the case. ¹⁰ By contrast, Judge Patricia Seitz, a Judge in the same District, allowed the use of geolocator technology to identify the name and location of a defendant. ¹¹

As noted above, once the suit is filed, the copyright owner then seeks to have a subpoena issued to the ISP to reveal the name and address of the subscriber. When the ISP receives the subpoena, it usually notifies the subscriber of the subpoena to give them a chance to object. Here again, courts, even within the same Federal District, split on whether a Defendant in BitTorrent cases can object to a subpoena delivered to a third party. On the one hand, Courts have ruled that the John Doe defendants had the ability to object based on “privacy interest in the information requested.” ¹² Once again, a different Judge in the same District ruled the Doe could not challenge the subpoena since “internet subscribers must convey their identity and other information to an ISP in order to establish an account…[and] do not have a reasonable expectation of privacy in their subscriber information.” ¹³

Then there is the question of whether, due to the pornographic content of the alleged infringed work, that extra considerations must be taken to protect the identity of the Doe defendant from public disclosure. This consideration is designed either to relieve the Doe of public embarrassment, or to prevent the copyright owners from using the pornography angle to “shake down” the Doe for a settlement, whether or not the Doe is actually at fault.

One Court was of the opinion that “[t]he risk of false positives gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading [adult material]. ¹⁴ Another Court was more blunt: “According to some of the defendants, the plaintiffs then contacted the John Does, alerting them to this lawsuit and their potential liability. Some defendants have indicated that the plaintiff has contacted them directly with harassing telephone calls, demanding $2,900 in compensation to end the litigation. When any of the defendants have filed a motion to dismiss or sever themselves from the litigation, however, the plaintiffs have immediately voluntarily dismissed them as parties to prevent the defendants from bringing their motions before the Court for resolution. This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.” ¹⁵

In response, some Courts have ordered that once the information has been obtained, that the John Doe not be contacted to discuss settlement unless represented by an attorney, or if the John Doe is unrepresented, that settlement discussions be had only by authorization of the Court. ¹⁶ Other Courts take the view that “[t]o the extent Defendant seeks a special procedure or rule to protect the privacy of such defendants or otherwise discourage such coercion, such arguments are best directed to the political branches of government.” ¹⁷

The copyright owners have taken note of this and changed their tactics. According to an “informational report” filed by Malibu Media, LLC in the Northern District of Illinois, Malibu Media’s attorneys assert that their policy is “to never oppose a defendant’s motion to proceed anonymously” and further warrants that “Malibu’s current policy is not to contact Doe defendants regarding settlements.” ¹⁸ The authors’ review of orders issued in current cases where Malibu Media is the Plaintiff support this declaration.

To the knowledge of the author, only three BitTorrent cases have gone to trial resulting in a judgment being entered. ¹⁹ All three of these cases resulted in a judgment for the copyright owner, with substantial damages being awarded. ²⁰ The majority of the cases are terminated either by settlement or voluntary dismissal by the copyright owner, most likely for the reason that they lack the proof necessary to prevail in the case.

So once the case proceeds, what are the defenses? These are some of the defenses that have been offered:

1. That the copying is too small to be damaging (so called de minimus copying).
2. That the copying was inadvertent and innocent.
3. That the other participants in the BitTorrent “swarm” must be made parties to the suit.
4. That due process would be violated by a large award of statutory damages.
5. That the copyright owner deliberately “seeds” BitTorrent sites with their own works for purposes of inducing infringement.
6. That the copyrighted work is obscene, and therefore cannot have copyright protection.
7. It wasn’t me who did the downloading.

The first three have been quickly rejected by the Courts. As to the rest:

Due Process: Defendants’ argument is that the amount capable of being awarded pursuant to section 504 of the Copyright Act is so large (up to $150,000) that it bears no resemblance to the amount of actual damages suffered by the copyright holders, and thus it violates their due process rights under the Constitution. Two appellate courts have ruled on this argument, though the cases involved the file sharing of musical works, and not motion pictures. ²¹ The courts both rejected this argument because 1) the range of statutory damages is clearly spelled out in the copyright act and so the Defendant is very much “on notice” as to what the potential liability might be, and cannot be surprised by it, and 2) statutory damages are designed to have a deterrent effect, and to vindicate the rights of the copyright owner where damages are minimal or hard to prove. ²² This is especially true in file sharing cases where it would be impossible to determine how many times a file sharer has distributed the file to third parties.

The copyright owner deliberately placed copies online to invite infringement: This defense arises from an allegation made against the now discredited Prenda Law group. The problem is that this allegation was not made until after the case had been voluntarily dismissed, and even then was raised in an objection to the initial report by the Magistrate recommending that no attorney’s fees be awarded to the defendant. ²³ Therefore, the person who made the affidavit never testified, was never subjected to cross-examination, and the Court never examined or ruled upon the truthfulness of the affidavit. For their part, Malibu Media denies that they do this. ²⁴ While this issue might be relevant to the award of damages, it does not seem that this is an effective defense against the act of infringement.

The copyright is invalid due to obscenity: This sounds good in theory, but falls prey to a misunderstanding of the basic principles of copyright protection. Copyright protection is given to works which express an idea. A pornographic film, even though crude and salacious, does express an idea. Obscenity would be a prohibition of its distribution to the public, not removing its copyright status so anyone can distribute it. Two appellate courts have addressed this defense and both have rejected it. The first appellate court to consider the issue ruled “the Copyright Act neither explicitly nor implicitly prohibits protection of ‘obscene materials,’ such as the films at issue there, and rejected the defendant’s affirmative defense of ‘unclean hands.’” ²⁵ Pragmatism further compels a rejection of an obscenity defense “because obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether.” ²⁶ In addition, there is this district court’s ruling that “[t]he question of whether particular pornographic films are ‘obscene’ is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright.” ²⁷

It wasn’t me: This, by far, is the most favored defense. The defendant will claim that some friend, relative, or romantic partner used the computer to download the infringing material, or that some hacker or other interloper gained access to their internet portal and did the wrongful downloading. These range from the plausible (former boyfriend) ²⁸ to the ridiculous (a burglar). ²⁹ The problem with this defense is the nature of how a computer operates. When a file is deleted, the computer does not erase the file as many people believe. The computer merely removes the “pointer” that allows the computer to find the file. The file remains on the computer until it over-writes it with new information. In numerous examples, once the defendant realizes this, and that the copyright owner is likely to make them turn over their computer for examination, an attempt to destroy this evidence is made. These include putting the computer in the garbage, removing the hard drive and installing a new one, ³⁰ or installing a new operating system ³¹ or using software to wipe the hard drive “clean” ³² to eliminate the incriminating data. By this time, the defendants have likely lied to the courts about their downloading activities, which the attempt to destroy the evidence uncovers. Judges and juries alike take a very dim view of perjury, with the results that the amount of damages awarded are substantial. ³³ Malibu Media has taken an interesting approach to the “it wasn’t me” defense. They offer to the defendant that they will dismiss the case against them if they take and pass a polygraph test administered by an administrator selected by the defendant. ³⁴ According to a court filing by Malibu Media, every single defendant who has taken the challenge has failed the polygraph, then subsequently settled the case. ³⁵

The change in tactics has paid dividends for at least one copyright owner: Malibu Media. The judge presiding over the first BitTorrent case to go to trial had this to say: “I emphasize that Malibu Media is not what has been referred to in the media and legal publications as a ‘copyright troll’ – i.e. a non-producer who has merely acquired the right to bring lawsuits against alleged infringers. Rather, Malibu is an actual producer of adult films and owns valid copyrights, with the United States Government in its works.” ³⁶

It is worth noting that the sexual nature of the works produced is likely a factor in the hostility the courts have shown to the BitTorrent cases. Copyrighted works which have an explicit sexual component have generally faired very poorly in the Federal Court system. ³⁷ In particular, there is this rather snide footnote from Magistrate Gary Brown of the Eastern District of New York: “In an ironic turn, the purveyors of such works as Gang Bang Virgins, explain how its efforts in this matter will help empower parents to prevent minors from watching ‘movies that are not age appropriate’ by ensuring that viewers must pay for plaintiffs products, and thereby effectively notify parents of such activity because ‘many parents would surely notice if they showed up on billing statements.’ It is difficult to accord the plaintiff, which features ‘Teen’ pornography on its website, the moral high-ground in this regard.” ³⁸

In sum, the line of cases that have resulted in a judgment, Thomas-Rasset, Tenebaum, Davis and White, it turns out that allegations of the Plaintiff in filing these lawsuits were indeed correct. You can identify someone by an IP address, and this address can reliably lead you to the person who is infringing your copyright. Many commentators critical of the BitTorrent plaintiffs also ignore the burden of proof in a civil trial. The proof does not need to be even 90% certain. The burden of proof in a civil trial is only “more likely than not,” which adds up only to a 51% certainty. While the number of settlements may have been motivated by purely an economic decision that the cost of settlement would be less than the cost of litigation, these are not unique to BitTorrent litigation. Defending any civil suit must take into account this factor.

In the end analysis, the author found no cases in which a file-sharing defendant went to trial, and prevailed. The more common theme was a blanket denial, followed by an attempt to destroy the evidence. Though Prenda Law well fit the definition of a copyright troll, the remainder of the Plaintiffs do not. One does not become a copyright troll just because one files a lot of lawsuits. Given the obstacles outlined by this article, it is surprising that any copyright owner takes the time to file individual lawsuits at all.