A Pirate’s Right to Privacy: Don’t Download Copyrighted Information!

31. October, 2012 Miscellaneous
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Plaintiff justifies early discovery of identities of allegedly illegal downloaders of movie

 

Braun v. Primary Distributor Doe No. 1 and Defendant Does 2 through 69, No.: 12-cv-3690 YGR (JSC), 2012U.S.Dist. LEXIS 118396 (N.D.Cal.Aug. 21, 2012)

 

Plaintiff alleged that defendants used the BitTorrent peer-to-peer file sharing network to illegally download a video produced and copyrighted by plaintiff.  BitTorrent works as follows:

 

in a process called “seeding” an initial file-provider shares a file with P2P networks. Other users (“peers”) on the network connect to the seed file to download. Each new file downloader receives a different piece of data from each user who has already downloaded the file that together comprises the whole. This piecemeal system with multiple pieces of data coming from different peer members is called a “swarm.” As new peers request the same file, each new peer becomes a part of the network and the peers offer parts of the file stored on their computers to other peers. This means that every “node” or peer who has a copy of the infringing copyrighted material also becomes a source of download for that infringing file.

 

(Dkt. No. 4-1 ¶ 8.)  Through an intermediary, plaintiff was able to identify the IP addresses of the users accessing the video, as well as the dates and times the files were shared (roughly a 36 hour period).   Plaintiff sought expedited discovery in order to subpoena the relevant internet service providers (ISPs) in order to disclose the name, address, telephone number and email address for each IP address.

 

The court was satisfied that plaintiff had identified each defendant with sufficient specificity such that it could conclude that each defendant was subject to the court’s jurisdiction.  The IP addresses accurately reflected those addresses used to copy the video, and through geolocation technology, plaintiff had determined that the IP addresses were located inCalifornia.  Since defendants had accessed the video without any other identifying information other than their IP addresses, plaintiff could not further identify them without the information from the ISPs.

 

Plaintiff also made a prima facie showing that the complaint could withstand a motion to dismiss, demonstrating that it owned a valid copyright, and that each defendant had intentionally copied the covered work.  The evidence uncovered through geolocation technology would also be sufficient to support an inference that all defendants resided inCalifornia, which was sufficient to support the expedited discovery request.  Proper joinder of the defendants was also sufficiently demonstrated by plaintiff’s showing that all defendants were part of the same swarm, downloading the video over the 36 hour period; and thus were part of the same transaction, raising common issues of law and fact.

 

The court acknowledged that the actual identities of the downloaders might not be revealed by the information sought from the ISPs, as the internet connection “could have been used by the subscriber, by another member of the household, by a visitor to the household, or by someone secretly using an unsecure connection.”  However, plaintiff proposed that the subscribers be given a thirty day period to respond to and potentially contest the subpoena.  Plaintiff would be given the information only after the thirty days had passed without a successful challenge.

 

The court granted plaintiff’s motion, finding:  “In these circumstances, where Plaintiff has a good faith belief that the Doe Defendants reside in California, has submitted declarations outlining the steps it has taken to ensure that the identified Doe Defendants in fact downloaded Plaintiff’s copyrighted material, and has limited its case to a narrow period of time, the Court concludes that good cause has been shown.”

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