More Bad News For Porn Piracy Lawsuits: Growing judicial hostility toward the copyright trolling business model

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From www.arstechnica.com – A federal judge has rejected attempts by several copyright holders to compel ISPs to hand over the identifying information of numerous customers without actually filing copyright lawsuits against them. The Friday opinion by James F. Holderman [pictured] of the Northern District of Illinois is the latest sign of growing judicial skepticism toward the new wave of copyright trolling campaigns.

While mass litigation against illicit file sharing was pioneered by the recording industry, recent lawsuits have often focused on the sharing of pornography rather than music. Many would-be defendants, regardless of their actual guilt, are anxious to settle to spare themselves the embarrassment of having their names publicly associated with online porn.

Judge Holderman notes that as this dynamic has become clear, the courts have become skeptical of plaintiffs who appeared more interested in harvesting contact information than actually pursuing lawsuits. For example, in some jurisdictions, judges have insisted that plaintiffs sue defendants one at a time, incurring court filing fees for each lawsuit. Some judges have also insisted that each lawsuit be limited to defendants in one specific judicial district rather than targeting defendants across the country.

In response to this “stiffening judicial headwind,” as Holderman puts it, some litigators have adopted a new tactic: sue just one Internet user, but use that lawsuit as a pretext to subpoena other defendants who had participated in the same BitTorrent swarm. The plaintiffs in these lawsuits claim that the other users had participated in a “conspiracy” to assist one another in distributing particular copyrighted works.

But courts increasingly find this tactic suspect, and Holderman rejected it, noting that conspiracy charges require evidence of an agreement among the purported conspirators. The mere fact that several BitTorrent users’ computers communicated with one another does not constitute a conspiracy among the users, he said.

“BitTorrent users remain anonymous to other BitTorrent users, and have no connection to them beyond the mere fact that they downloaded the same file,” Holderman wrote. “It is therefore not a reasonable calculation that the individuals connected to the subpoenaed IP addresses will have any discoverable information related to the current defendants.”

Holderman’s ruling, on top of last week’s ruling in Florida*, suggests growing judicial hostility toward the copyright trolling business model. The courts are designed to decide the legal merits of significant disputes between parties. Yet the monetary harm of any specific act of file-sharing is so small—and the legal process is so expensive—that it’s rarely in the interests of copyright holders to actually litigate against even guilty defendants.

So instead, some copyright holders use the threat of expensive litigation to extort settlements. Because the copyright holder’s threat is based on the cost of litigation (and risk of public embarrassment) more so than the damages a defendant would face in the event of a loss, innocent defendants have virtually as much incentive to settle as guilty ones do. That’s not how things are supposed to work, and more and more judges are refusing to play along.

*The Florida ruling: from www.arstechnica.com – Last week we reported on a scathing order signed by a Florida state judge in one of several copyright trolling cases pending in the state of Florida. After we published the story, we learned that Judge Marc Schumacher had withdrawn the order. Evidently, it had been drafted by one of the defendants, and Judge Schumacher had signed it on the mistaken belief that it had been agreed to by all parties in the case.

But while the defendants’ celebrations last week were premature, two rulings in related cases this week have dealt a serious blow to the plaintiffs and their dodgy legal strategy. Ordinarily, copyright law is handled by the federal courts, but Florida plaintiffs have begun using an obscure provision of state law called a “pure bill of discovery” to attempt to force ISPs to reveal the identity of suspected file-sharers.

As Princeton copyright scholar Bart Huffman explained last year, the plaintiffs’ legal theory was always rather shaky. This week, it appears to have collapsed altogether.

A group of ISPs objected to the questionable subpoenas they had received, and so plaintiffs attempted to remove those ISPs’ specific customers from the lawsuit rather than risk losing a ruling on the merits. But the ISPs pressed for an official ruling on the legality of the plaintiffs’ fishing expedition.

In a pair of rulings, one on Monday and one on Wednesday, two different judges sided with the objecting ISPs. On Monday, Judge Ronald Dresnick dismissed a case targeting 313 Internet users. On Wednesday, Judge Marc Schumacher issued a ruling in another case—separate from but similar to the one we reported on last week—targeting 625 defendants. He didn’t dismiss the lawsuit entirely, but he did the next best thing. He quashed subpoenas to the objecting ISPs and ordered that other ISPs be notified of the opportunity to challenge them.

These back-to-back rulings against the plaintiffs suggest that they’re likely to lose any time ISPs raise objections to fishing expeditions against their customers. Unfortunately, a source tells Ars, some ISPs may have already disclosed their subscribers’ identity before this week’s rulings, and others may yet do so in other cases that are still pending. This week’s rulings are good news, but we wish Judge Schumacher had stuck with the order he signed last week.

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