Balancing the Privacy Rights of Individual John Doe Defendants with Strike 3’s Right to Pursue Its Copyright Infringement Claims
Digital piracy on peer-to-peer networks can have serious financial consequences for copyright owners. As one congressman put it:
Under US law, intellectual property theft is nothing but theft. It hurts artists, the music industry, the movie industry, and others involved in creative work. And it’s unfortunate that the software used, dubbed “file sharing,” as if it simply allows friends to share recipes, is helping to create a generation of Americans who see no evil. [1]
As digital pirates increasingly use BitTorrent and other peer-to-peer networks to share media, copyright owners have lobbied the courts for redress. To combat the losses associated with peer-to-peer file sharing, copyright holders have filed a series of lawsuits against infringers in federal courts across the country. See, for example, BMG Rights Mgmt. (US) LLC v Cox Commons, Inc.., 881 F.3d 293, 298-99 (4th Cir. 2018); Killer Joe Nevada, LLC v. Done 1-20807 F.3d 908, 910 (8th Cir. 2015); Dallas Buyers Club, LLC vs. Madsen, 2015 US Dist. LEXIS 148445 at *1 (WD Wash. Nov. 2, 2015) (noting that the action is “one of 13 virtually identical cases filed” alleging infringement of the film by BitTorrent users Dallas Buyers Club).
These lawsuits are not without controversy: many involve “copyright trolls” who buy out the copyrights to adult films and then sue masses of unknown BitTorrent users for illegally downloading pornography. . [2]
Peer-to-peer networking involves a “decentralized infrastructure in which each participant in the network. . . acts as both a provider and a consumer of information resources. [3] In other words, “peers” download content from their peers, while leaving their own folders of digital content available for others to download. One type of peer-to-peer networking involves the BitTorrent protocol, in which a file is split into smaller chunks from various peers and then reassembled at the end of a download. With BitTorrent, “each user simultaneously uploads and downloads several different pieces of a file to and from several other users”. [4] Peer-to-peer networks like BitTorrent are “ideally suited for sharing large files, a feature that has led to their adoption, among others, by those wishing to access pirated media, including music, movies and TV shows”. [5]
BitTorrent is a system designed to quickly distribute large files over the Internet. Instead of downloading a file, such as a movie, from a single source, BitTorrent users can connect to the computers of other BitTorrent users in order to simultaneously download and download parts of the file from and to other users. To use BitTorrent to download a movie, the user must obtain a “torrent” file for that movie, from a torrent site. The torrent file contains instructions for identifying the Internet addresses of other BitTorrent users who have the movie and for downloading the movie from those users. Once a user downloads all of the pieces of that movie from other BitTorrent users, the movie is automatically reassembled in its original form, ready to play on the recipient’s device.
Strike 3 hires forensic investigators to tap into BitTorrent and track the uploading and downloading of hash files that make up its copyrighted adult cinematic works. Using specially designed software and tools, investigators can determine when an IP address is being used to download all of the hash files for a full movie. Investigators then continue to monitor that IP address for months or years until the number of tracked downloads triggers Strike 3 to take legal action (usually over 20).
When John Doe’s IP address is mentioned in a complaint, John Doe is not further notified until he receives a letter from his Internet Service Provider (“ISP”) (such as Comcast, Verizon , AT&T, Time Warner, etc.) informing John Doe of a subpoena the ISP received ordering him to reveal John Doe’s name and address to Strike 3. Thus, John Doe is forced to face a lawsuit alleging illegal downloading of pornographic material even though Strike 3 does not yet have any real proof that John Doe – unlike another person with access to John Doe’s Wi-Fi – was the internet user who actually downloaded Strike 3 movies.
This of course involves privacy concerns and the risk of reputational damage to an innocent John Doe named or associated with a salacious lawsuit. That’s why the courts insist on anonymity and protective orders to protect a John Doe’s privacy while allowing Strike 3 to get the information it needs to pursue its case.
By balancing the privacy interests of the John Doe defendants with the plaintiff’s right to sue those who anonymously infringe his intellectual property rights, many courts believe that the entry of a limited protection order strikes the right balance between the interests of Strike 3 and the misidentification of individual defendants and the invasion of privacy issues. . See, for example, Manny Film LLC v. Doe IP address assigned to subscriber 50.166.88.9898 F. Supp.3d 693, 696 (DNJ 2015) (granting expedited discovery but directing the Internet service provider to provide the Internet subscriber with a copy of the order and a copy of the subpoena received from the plaintiff and receipt of the order and subpoena, giving the Internet subscriber twenty-one (21) days to either rescind the subpoena or alternatively offer an order of protection. Further, the court ordered that the ISP not provide no relevant information to the plaintiff until the latter of the expiration of a period of twenty-one (21) days or resolution of any request for annulment or order of protection); Strike 3 Holdings, LLC vs. Doe, 2019 US Dist. LEXIS 168379, at *7 (DNJ 30 September 2019) (declining to issue a protective order but allowing the plaintiff to proceed anonymously); Strike 3 Holdings, LLC vs. Doe330 FRD 552, 556-57 (D. Minn. 2019) (enter a comprehensive, multi-faceted protective order to help protect privacy interests and limit risk of embarrassment and misidentification); Malibu Media, LLC v Doe, 2013 US Dist. LEXIS 189452 at *2 (DNJ Aug. 19, 2013) (limiting scope of pre-rule 26(f) subpoena to subscriber name and address); Images of tension against Doe, 2013 US Dist. LEXIS 155356, at *9-10 (DNJ May 31, 2013) (granting permission to serve a subpoena requesting only the name, address, and media access control address associated with a particular IP address ).
[1] Privacy and piracy: the paradox of illegal file sharing on peer-to-peer networks and the impact of technology on the entertainment industry: hearing before the S. Comm. on government affairs, 108th Congr. 10-14 (2003) (statement of Senator Levin); see also id. 1-2 (Senator Boxer’s statement) (claiming that “downloading copyrighted works is theft” and “is a real problem”).
[2] Glacier Films (USA), Inc. vs. Turchin896 F.3d 1033, 1035 (9th Cir. 2018).
[3] Columbia Pictures Indus., Inc. v. Fung710 F.3d 1020, 1024 (9th Cir. 2013).
[4] fun710 F.3d at 1027.
[5] Identifier. at 1025; see also Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.545 US 913, 919-20 (2005).
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