Copyright Intellectual Property

Courts Demand Detailed Plan For Expedited Discovery In BitTorrent Copyright Infringement Cases

Third Degree Films
Third Degree Films had its motion to seek leave to conduct expedited discovery denied even though the motion was unopposed.

There does not seem to be any decrease in the number of defendants accused of engaging in copyright infringement through the use of BitTorrent, a peer-to-peer file sharing program.  However, courts continue to show a reluctance to give plaintiffs, in those cases, all the tools they wish to use in an effort to squeeze every single dollar out of identified infringers.  One of the newest defendant-friendly orders came in the case of Third Degree Films v. John Does 1-110, filed in the United States District Court District of New Jersey.

Third Degree Films, a pornographic film studio, has engaged in a similar practice of many other studios interested in recouping some of their losses from the downloading of their content without compensation for same.  The company will determine a swarm of IP addresses purportedly engaged in the peer-to-peer sharing of its copyrighted content and then subpoena internet service providers (ISPs) to provide the personal contact information attached to each of those IP addresses.  The ISPs will send a letter to subscribers whose services match up with the IP addresses submitted and give those subscribers a limited amount of time to file a motion to quash the subpoena or otherwise dispute the method of the studio.  Meanwhile, the IP addresses remain listed as John Does; no name is made public at this stage of the litigation.

In Third Degree Films v. John Does 1-110, the court rejected the studio’s motion to seek leave to conduct expedited discovery in an effort to ascertain the identities of the 110 John Does.  The motion was denied in spite of the fact that it was unopposed and no argument was held before the court.

First, as we have seen in the past, the court had a problem with the number of John Does joined in the same case.  The New Jersey federal court said, “the joinder of 110 John Doe defendants in this context appears inappropriate.”

But more important to this discussion concerning expedited discovery, the court demonstrated that it had a problem with the defendants being known to the plaintiff only by an IP address.

“In some instances, the IP subscriber and the John Doe defendant may not be the same individual. Indeed, the infringer might be someone other than the subscriber; for instance, someone in the subscriber’s household, a visitor to the subscriber’s home or even someone in the vicinity that gains access to the network. See VPR Internationale v. Does 1-1017, No. 11-2068,2011 WL 8179128 (C.D.Ill. Apr. 29, 2011). As a result, Plaintiff’s sought after discovery has the potential to ensnare numerous innocent internet users into the litigation placing a burden on them that outweighs Plaintiff’s need for discovery as framed.” (emphasis added)

The justification that the court proffered was that if it would have ruled in the alternative and allowed the plaintiff to subpoena the ISPs and gain information concerning the name, address, telephone number, e-mail address and Media Access Control address of each IP address identified, it could “subject an innocent individual to an unjustified burden.”  Thus, the motion for expedited discovery was denied, but without prejudice.

In order for a studio, such as Third Degree Films, to prevail in a motion for leave to conduct expedited discovery, it will have to present the court with “a detailed plan that addresses the Court’s concern regarding potentially innocent individuals.”  The plan should include how the studio intends to utilize the name, address, telephone number, e-mail address and Media Access Control address of any IP subscriber if obtained, and adequately provide sufficient legal support for the application, particularly with regards to the concern, and its potential impact on social and economic relationships, that the release of such private information could compel a defendant entirely innocent of the alleged conduct to enter an extortionate settlement.