In Raw Films Ltd. v. John Does 1-15 ISPs Must Turn Over Customer Names; UK Film Company Sues Philadelphians

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from www.law.com – Internet service providers have to disclose the names of their subscribers who are accused of using a file-sharing site to copy a pornographic movie, a federal judge has ruled in a copyright infringement suit.

U.S. District Court Judge Mary A. McLaughlin [pictured] of the Eastern District of Pennsylvania said that while Internet users have an expectation of privacy, that doesn’t apply when they are allegedly infringing on another party’s copyright.

Since the 3rd U.S. Circuit Court of Appeals hasn’t come up with a standard for balancing the right to anonymous speech against the need for discovery, McLaughlin adopted a five-point test followed by the 2nd Circuit.

According to the opinion, courts around the country have adopted a variety of standards to handle the issue. McLaughlin said the 2nd Circuit was the only federal appellate court to have come up with a test to handle the issues.

Given the prevalence of file sharing, McLaughlin’s opinion could have broad applicability.

“Courts analyzing the expectation of privacy possessed by Internet users engaging in online file-sharing have concluded that such expectation is at most minimal because those individuals have already voluntarily given up certain information by engaging in that behavior,” McLaughlin said in her 21-page opinion in Raw Films Ltd. v. John Does 1-15 .

“A Doe defendant who has allegedly used the Internet to unlawfully download and disseminate copyrighted material does not have a significant expectation of privacy.”

In Raw Films, the British adult film website contends that 15 John Does from the Philadelphia area, identified only by their Internet-protocol addresses, violated federal copyright law when they allegedly reproduced the pornographic movie Bareback Street Gang. Raw Films moved to compel the ISPs to give it the names associated with the addresses.

Raw Films alleged that the Doe defendants used BitTorrent protocols, described in the complaint as “the most common peer-to-peer file-sharing protocols,” to reproduce the movie. The system works by having an initial “seeder” that breaks the original file into equally sized pieces that are later reassembled into a whole when a user downloads the Torrent file, according to court papers.

The BitTorrent protocol, whose users account for more than a quarter of all Internet traffic, the complaint said, derives its popularity from “its ability to distribute a large file without creating a heavy load on the source computer and network.”

The complaint described the system this way: “To reduce the load on the source computer, rather than downloading a file from a single source computer (one computer directly to another), the BitTorrent protocol allows users to join a ‘swarm’ of host computers to download and upload from each other simultaneously (one computer connected to numerous computers).”

Each of the Does in the suit is alleged to have participated in a swarm distributing Bareback Street Gang .

Eighteen similar suits have been filed in more than a dozen district courts over the last year.

The 2nd Circuit adopted the test “balancing intellectual property rights against First Amendment anonymity interests,” in its 2010 decision in Arista Records v. Doe 3.

According to McLaughlin, the 2nd Circuit “derived” the five-factor test from a 2004 Southern District of New York opinion, Sony Music Entertainment Inc. v. Does 1-40.

The test arose from a similar copyright-infringement case involving Sony Music Entertainment in which the court recognized the potential for a person’s choice in uploading files to be protected but allowed that the U.S. Constitution affords limited protection to speech that infringes on copyrighted material.

According to McLaughlin, the five factors to determine if the need to disclose outweighs the right to anonymity are a prima facie claim of infringement; the specificity of the information sought from the ISP; a lack of alternative means of obtaining the information; a “central need” for the information in order to bring the claim; and the expectation of privacy held by the objecting party.

“The court concludes that such a test strikes the appropriate balance between the limited protection afforded to speech that constitutes copyright infringement and the need for the plaintiff to serve a defendant with process in order to advance nonfrivolous claims of infringement,” McLaughlin said.

Weighing those factors, McLaughlin found the Internet providers had to produce the names of their customers.

The first mark of the test — a prima facie claim of infringement — is easily met by Raw Films’ assertion that it owns a copyright in Bareback Street Gang , a 2006 Czech-language movie, and that the Does connected to its “investigative server” and copied parts of the film, she said.

Second, since Raw Films seeks the names, addresses, telephone numbers and email addresses for the people associated with the IP addresses involved with file sharing, the requirement for specificity in identifying the Does is met, McLaughlin held.

Similarly, Raw Films successfully argued that the only way by which it could get the names of the Does is through the ISPs, which satisfied the third and fourth criteria.

The final factor to be assessed is the expectation of privacy held by the Internet user, which McLaughlin found was low. By engaging in peer-to-peer file sharing, users open their computers “to the world,” she quoted from a 2003 opinion.

After her discussion of the test, McLaughlin denied the Does’ motion to quash the subpoena.

“The court concludes that such a test strikes the appropriate balance between the limited protection afforded to speech that constitutes copyright infringement and the need for the plaintiff to serve a defendant with process in order to advance nonfrivolous claims of infringement,” McLaughlin said.

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