Friday, December 19, 2014

Illegal Downloads - Is an IP Address Enough Information?

The adult film industry has been accused of trying to coerce settlements in matters relating to alleged illegal downloading of adult films by shaming the accused infringer through publicity.  I write below about Magistrate Judge Wilson crafting a solution to protect a purported infringer from a similar shame -- that of illegally downloading (and watching??) a Steven Seagal movie!

I've written before about issues of tracking down purported illegal downloads of copyrighted materials.  A typical fact pattern is the owner of the copyright tracks down an IP address where the copyrighted materials were apparently downloaded and/or copied without permission.  The copyright owner files suit in district court against John/Jane Doe, and asks the Court for leave to serve early discovery, namely a subpoena to the ISP trying to determine the identity associated with the IP address on the day(s) of the purported infringement.

A theme developing in defense of these attempts at discovery is that the identity of the subscriber may not be the actual infringer, and thus the attempt to obtain such discovery may be overbroad and improper.  See e.g. Malibu Media v. Doe, Case No. 1:14-CV-20213 (S.D. Fla. Mar. 5, 2014) (J. Ungaro).  Defendants extend the argument to explain that, in some instances, the copyright holder may attempt to coerce a settlement by publicly naming the purported infringer.

Imagine, for instance, the IP address is associated with a coffee shop on the day of the purported infringement.  Does that mean the coffee shop or its employees necessarily engaged in the infringing activity?  No.  But does it mean that that shop may be in a better position to inform the copyright owner who the purported infringer may be?  Or perhaps the coffee shop will have records from which that information may be derived.

Good Man Productions claims ownership of the copyright to the Steven Seagal film "A Good Man" and claims illegal downloading of the film occurred in the Middle District of Florida.  GMP sought leave to issue a subpoena to determine the identity associated with the IP address in question.  The Court allowed the subpoena, but with the following conditions:
To address potential issues relating to the identity of the defendant, the parties shall adhere to the following procedures:
a. The plaintiff shall immediately inform the defendant who contacts the plaintiff or whom the plaintiff contacts that said defendant has the right to obtain legal counsel to represent him or her in this matter and that anything said or provided by the defendant can and likely will be used against him or her in this proceeding.
b. If the defendant does not wish to be contacted by the plaintiff, the defendant may at any time inform the plaintiff by phone or send the plaintiff's counsel a letter or e-mail addressed to [plaintiff's counsel] that states: “Please do not contact me (again) prior to serving me in this matter.”
c. The plaintiff must notify the defendant, or his or her counsel if represented, of the plaintiff's intent to name and serve the defendant at least 14 calendar days prior to seeking issuance of a summons from the Clerk for the identified defendant.
d. The plaintiff shall inform the defendant of the potential for sanctions under Rule 11, Fed.R.Civ.P., if the defendant is incorrectly identified.
e. The plaintiff shall provide a copy of this Order to the defendant.
f. The plaintiff must notify the defendant that he or she may submit a written or electronic objection to the plaintiff's counsel. If the defendant asserts that he or she did not personally commit the infringing act, the defendant must identify the individual responsible for the infringement, or, if the identity of the infringing individual is unknown, provide exculpatory evidence regarding the defendant's innocence. The plaintiff's counsel shall file, or attempt to file, that objection, under seal, with this court, along with any response the plaintiff has to the objection. See Local Rule 1.09. Thereafter, the court will consider the defendant's objection and the response, and determine if the case shall proceed against the identified defendant. Until the court makes such a determination, the plaintiff may not identify the defendant by name in this lawsuit. If, however, the defendant does not object in writing or electronically, the plaintiff may proceed by naming the defendant in this case
This approach appears to strike a balance between a plaintiff's need to gain discovery and a potentially mis-identified defendant's rights.  We'll see if other courts are inclined to follow such an approach.

Motion for Leave to Serve Subpoena, granted.
Good Man Productions, Inc. v. Doe, Case No. 8:14-CV-3007 (M.D. Fla. Dec. 15, 2014) (Mag. Wilson)