DC Circuit Vacates Decision Allowing Serial Mass Copyright Litigant Access to Users’ Identifying Information

by Paul Alan Levy

In an opinion issued this morning, the D.C. Circuit unanimously reversed a trial court ruling that compelled several ISP's to provide identifying information for more than a thousand anonymous users who were sued a maker of pornographic movies for allegedly using the BitTorrent protocol to provide access to copies of an adult film.  Although not mentioning the First Amendment right to speak anonymously, the panel endorsed two of the key objections that a coalition of civil liberties groups has been urging for the past decade as a reason to limit subpoenas to identify alleged copyright infringers in mass litigation filed against hundreds or even thousands of users of popular filing-sharing protocols.

The court noted that the Internet Protocol addresses found to have been connected with plaintiff's movie suggested that although the great majority of the anonymous users were apparently located outside the District of Columbia, the plaintiff had made no effort to exclude non-resident defendants from the litigation. It also ruled that there was no justification for joining more than a thousand defendants in a single lawsuit, rejecting the contention that mere use of BitTorrent technology was enough to make each defendant complicit in a single alleged wrongful transaction.  In both respects, the court found indications that plaintiff was seeking discovery about the identification of defendants who could not possibly be kept in the lawsuit in DC, which the court condemned as an ulterior purpose for discovery not permitted by the Federal Rules.

Although not addressing the First Amendment right to speak anonymously, the court noted that the law firm representing the filmmaker was notorious for filing lawsuits aimed entirely at producing settlements instead of litigating to judgment, going so far as to dismiss the lawsuit against any defendant who gave a sign of being willing to overcome the embarrassment of being identified as an alleged viewer of pornographic movies, and being willing to retain counsel to defend the copyright suit dispute instead of settling the case for a couple of thousand dollars.

It remains to be seen whether this common-sense analysis will be extended to copyright plaintiffs whose infringed works are more in the cultural mainstream.

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