Legal Issues

by Mike Masnick


Filed Under:
copyright, id, ip address, trolls



Motion To Quash Against Copyright Troll Explains How IP Address Does Not ID User

from the will-it-work? dept

That Anonymous Coward alerts us to a recently filed "motion to quash" (pdf) one of the many subpoenas that copyright troll lawyer John Steele has been trying to get courts to issue. After running into trouble convincing judges in his home state of Illinois, it appears that Steele has branched out. This latest involves a lawsuit filed in the Northern District of California, where (unfortunately) Magistrate Judge Howard Lloyd went ahead and allowed early discovery and the issuance of subpoenas. While this is standard in many cases, more and more courts have begun realizing it is not appropriate in these copyright trolling cases where the sole purpose is to identify users to try to pressure them into settling.

While there have certainly been many motions to quash, this one made some particularly good points that seemed worth highlighting. First, it explains that IP addresses are not like fingerprints and do not identify a user (my emphasis):
The Third Degree Films complaint and ex parte request for expedited discovery form yet another in a wave of suits in which copyright infringement plaintiffs seek to “tag” a defendant based solely on an IP address. However, an IP address is not equivalent to a person or entity. It is not a fingerprint or DNA evidence – indeed, far from it. In a remarkably similar case in which an adult entertainment content producer also sought expedited discovery to learn the identity of persons associated with IP addresses, United States District Judge Harold Baker of the Central District of Illinois denied a motion for expedited discovery and reconsideration, holding that, “IP subscribers are not necessarily copyright infringers…The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.” Order of Apr. 29, 2011, VPR Internationale v. DOES 1-1017, No. 2:11-cv-02068 (Central District of Illinois) (Judge Harold A. Baker) [hereinafter VPR Internationale Order], attached hereto as Exhibit C. The point so aptly made by Judge Baker is that there may or may not be a correlation between the individual subscriber, the IP address, and the infringing activity. Id. The risk of false identification by ISPs based on internet protocol addresses is vividly illustrated by Judge Baker when he describes a raid by federal agents on a home allegedly linked to downloaded child pornography. The identity and location of the subscriber were provided by the ISP (in the same fashion as Plaintiff seeks to extract such information from Wide Open West.) After the raid revealed no pornography on the family computers, federal agents eventually learned they raided the wrong home. The downloads of pornographic material were traced to a neighbor who had used multiple IP subscribers’ Wi-Fi connections. Id. This risk of false identification and false accusations through disclosure of identities of internet subscribers is also presented here. Given the nature of the allegations and the material in question, should this Court force Wide Open West to turn over the requested information, DOE No. 605 would suffer a reputational injury.
Separately, it notes that those using these tactics are using high pressure efforts to get people to pay up to settle:
If the mere act of having an internet address can link a subscriber to copyright infringement suits, internet subscribers such as DOE No. 605 will face untold reputational injury, harassment, and embarrassment. The reputational risk that Judge Baker found to be an undue burden is equally presented here: “[W]hether you’re guilty or not, you look like a suspect.” Id. at 3. Moreover, this case presents the same extortion risk that so concerned Judge Baker:
“Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case.”
Id. Discovery is not a game. Yet, plaintiffs in these types of cases use discovery to extort settlements from anonymous defendants who wish to avoid the embarrassment of being publicly associated with this type of allegation. Id. Such abuse of the discovery process cannot be allowed to continue.
From there, it argues that since an IP address does not identify the user, the subpoena itself is invalid:
Additionally, this subpoena should not have been issued in the first place because the information sought is not relevant to Plaintiff’s allegations. Implicit in the rule granting subpoena power is a requirement that the subpoena seeks relevant information. See Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998)(“the reach of a subpoena issued pursuant to [FED. R. CIV. P. 45] is subject to the general relevancy standard applicable to discovery under [FED. R. CIV. P. 26(b)(1)].”). The information linked to an IP address cannot give you the identity of the infringer. VPR Internationale Order, at 2. Because the infringer could have been anybody with a laptop passing within range of the router, the information sought by Plaintiff is not relevant to the allegations in any way. Id. Moreover, even if the information has some small amount of relevance to the claim—which it does not—discovery requests cannot be granted if the quantum of relevance is outweighed by the quantum of burden to the defendant. FED. R. CIV. P. 26(b)(2)(C)(iii). Plaintiff’s request fails that balancing test. Given that DOE No. 605 was only one of many persons who could have used the IP address in question, the quantum of relevance is miniscule at best. However, as discussed above, the burden to DOE No. 605 is severe. The lack of relevance on the one hand, measured against the severe burden of risking a significant reputational injury on the other, means that this subpoena fails the Rule 26 balancing test. Id. Plaintiff’s request for information is an unjustified fishing expedition that will cause reputational injury, prejudice, and undue burden to DOE No. 605 if allowed to proceed. Good cause exists to quash the subpoena served on Wide Open West to compel the disclosure of the name, address, telephone number and e-mail address of DOE No. 605."
Nice to see more people fighting back against obvious fishing expeditions. Hopefully more judges start realizing what these kinds of requests are really about.

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  1. icon
    Dark Helmet (profile), 10 Aug 2011 @ 9:07am

    Re: Re: Re:

    "DH, are you dense? Can't you read? Any number of cases regarding long distance phone charges, 900 line charges, etc. You can go look for caselaw it if you want."

    Right, but all of that is only relevant to your SUPPOSITION, that internet connections aren't much different than telephone lines.

    "Remember too: We are talking civil lawsuits, not criminal cases. While the motion suggests that IP isn't enough to pinpoint an individual user, it is certainly enough to determine the connection used, the location of that connection, who is responsible for that connection, and creates the old "preponderance of evidence" that the user assigned to that IP is responsible for what is happening on that connection during the time they are logged on."

    That's fair, though debatable. Certainly it isn't a "fact" as you'd stated. You've got a fairly hefty debate occurring over how responsible people should actually be for IP Addresses, with things like open WiFi and spoofing to be considered. This story actually hilights that such a debate is occurring. Those aren't facts, this is all opinion.

    "In a civil case, it's a slam dunk admission from the defendant that the IP address is theirs, that they were logged on at the time, but they are suggesting someone else might have used it. It's unlikely to fly in a civil case."

    All fair speculation. But that's what it is: speculation.

    Look, partner, you're allowed to have an opinion. It's fine. But to make some broad statement about how everyone should see the facts here w/o actually presenting any FACTS is just silly. So just say it's your opinion.

    "As for your comment, your reply is a little lacking in imagination and depth. On the irony scale, you win!"

    .....what? Assuming everyone agreed that my comment sucked and lacked imagination and depth....where would the irony be?

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