“Torrent Wars” Article by Jeffrey Antonelli Published by ISBA

Have you been sued for downloading a movie using BitTorrent or a streaming service like PopcornTime?

This article describes “copyright trolling” litigation in movie download lawsuits by attorney Jeffrey Antonelli of Antonelli Law.

The article, Torrent Wars: Copyright trolls, legitimate IP rights, and the need for new rules vetting evidence and to amend the Copyright Act was published by the  Illinois State Bar Association’s Intellectual Property Section Newsletter.

For those who cannot view pdfs an excerpt is below.

Today, a program called BitTorrent is spurring a new wave of internet file sharing, and along with it an ocean of online copyright infringement. Those running the program post torrent files on immensely popular websites like the Pirate Bay. While filed to ostensibly catch and stop the online infringers, critics of this practice contend it is really about revenue. Consequently, the blogs on the internet came up with an addition to the English and legal lexicon: the copyright troll.

TO SETTLE OR FIGHT

It is no secret that litigation is expensive, and that fact is often used by plaintiffs as a factor in determining how much to demand in settlement. For an innocent defendant to choose not to pay a settlement of a few thousand dollars, and instead pay his or her attorney potentially tens of thousands of dollars or more in legal fees, clearly more than financial incentives must be at play. Often times, innocent defendants will pay a settlement of $2,000 or so rather than live through the ordeal of fighting a lawsuit and paying that amount of money many times over for legal defense. Yet sometimes innocent parties are sometimes so angered at being named that even after full disclosure by their counsel as to the costs of competent defense, they will decide to fight rather than to settle.

EVIDENTIARY PROBLEMS – THE FAILURE TO CONTROL FOR “FALSE POSITIVES” 

Courts, too, are cognizant of the fact that not all IP addresses point to an actual infringer. See, e.g., Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (estimating that 30% of the individuals whose names were disclosed to plaintiffs did not download the copyrighted material). The court in SBO Pictures stated: “the ISP subscriber to whom a certain IP address was assigned may not be the same person who used the internet connection for illicit purposes.” Similarly, In re Bittorrent Adult Film Copyright Infringement Cases, the district court explained that ‘it is no more likely that the subscriber to an IP address carried out a particular computer function … than to say an individual who pays the telephone bill made a specific telephone call.” The court explained that due to the increasing popularity of wireless routers, it is even more doubtful that the identity of the subscriber to an IP address correlates to the identity of infringer who used the address.

THE NEED FOR A COURT SCREENING PROCESS

The writer believes that this unacceptably high incidence of identity theft, referred to in the computer science literature as “false positives”, poses a serious due process problem and some technological screening process must be used by the court prior to copyright plaintiffs being granted leave to issue Rule 45 subpoenas to the ISPs to identify the accountholder associated with the IP address. Somewhat analogous to the grand jury in criminal cases, this screening process would be a vetting of the technical evidence presented by the plaintiff just as a prosecutor must present evidence to a grand jury prior to an indictment being issued.

This court screening process can be added to Section 502 (Injunctions), Section 503 (Impounding and disposition of infringing articles) and Section 504 (Damages and profits) in a fashion similar to what the Maryland District Court has done with all cases filed by copyright plaintiff Malibu Media.  Maryland has appointed Professor William Hubbard, a member of the faculty at the University of Baltimore School of Law, who teaches copyright and intellectual property law, to serve as a Master in the Malibu cases. When a copyright lawsuit is filed by Malibu Media, procedures are followed to, inter alia, a) allow the Master to obtain information from the ISP, b) allow the Subscriber to provide the Master with information to enable the Master to make a preliminary recommendation whether a plausible claim for copyright infringement may be brought against the Subscriber, and c) for the Master to makes a recommendation that a factual basis exists, or does not exist, for Malibu to assert a plausible claim for relief against a Subscriber for copyright infringement.

Even aside from the allegations that some unethical attorneys may actually be “seeding” their own copyrighted works online to induce others to download the work and then be sued later, it is fundamentally unfair that innocent individuals and families are currently being subjected to the unnecessary worry and expense of being targeted by copyright trolls starting with the notice of subpoena from the ISPs, perhaps based on flimsy evidence. A court screening process, perhaps like the Maryland District Court’s Master, is a necessity to prevent the current troublesome number of innocent individuals and families from continuing to be subjected to claims of online copyright infringement.

THE NEED TO AMEND THE COPYRIGHT ACT

Most people seem to agree that the average consumer who wrongfully obtains a copyrighted work should be subjected to the risk of being punished by a monetary fine. However, none of these BitTorrent copyright cases involve people attempting to redistribute the work for a profit. It seems incredibly unfair to subject consumers who are alleged to have downloaded a single movie or song on the internet for private viewing or listening purposes to be exposed to a potential $150,000 statutory damages award, plus attorneys fees as provided in Section 504(c)(2). In order to present the potential for a proportional remedy for non-profiteering copyright infringement by a consumer, the writer suggests amending the Copyright Act to a maximum of $5,000 statutory damages where willfulness is demonstrated, and $500 if willfulness is not demonstrated.

Suggested Changes to the Copyright Act:

Change Section 504(c)(1)’s text from “an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just” (italics added) to “an award of statutory damages for all infringements involved in the action, when no monetary gain was intended by the infringement with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $500 as the court considers just.” Change Section 504(c)(2)’s text to “In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. However, if no monetary gain was intended by the infringement, the court may only increase the award of statutory damages to a sum of not more than $5,000.”

This cap on damages for non-profit-motivated copyright infringements may reduce the number of the more frivolous copyright trolling lawsuits and, at the very least, reduce the settlement amounts paid by those innocent defendants who just don’t want to deal with a lawsuit down from thousands of dollars, to just hundreds of dollars.

For the full article, and for more information about subpoena defense, please visit the Antonelli Law website.