Pivotal piracy case could put copyright trolls out of business

Association of American Publishers

A Pennsylvania District Court judge seems to be fed up with copyright holders wasting the courts’ time and resources, ordering an adult movie studio and five anonymous alleged copyright infringers to present their respective cases to court in a bellwether trial.

Judge Michael Baylson has ordered that their evidence -- gathered from file-sharing client BitTorrent -- be put on trial, which basically means that for copyright trolls, it’s about to get real.

In recent years, copyright trolling has become a viable way for small businesses to make millions by scaring people into paying settlements. In the past two years alone, more than 200,000 BitTorrent users have been sued in mass file-sharing lawsuits brought on by copyright trolls.

Copyright trolls are usually small businesses that own the rights to some type of media. These businesses hire teams of lawyers to hunt down illegal file-swappers who are allegedly trading, downloading, selling, etc. their copyrighted material. Using little more than anonymous IP addresses as evidence, copyright trolls subpoena Internet Service Providers (ISPs) to give up user information.

Armed with this information, copyright trolls contact users and offer them an ultimatum -- face a lawsuit that could potentially cost them thousands of dollars in legal fees alone or accept a settlement. Settlements are typically between $1,500 and $3,000, and most users take them. In fact, copyright trolls bank on the fact that most users will settle, rather than face a potentially expensive legal battle. This way, the trolls make millions of dollars without ever stepping foot into a court room.

Such is the case with Malibu Media, an adult movie studio that has filed 349 mass lawsuits this year alone, according to TorrentFreak. Adult movie studios are particularly guilty of copyright trolling, since people are willing to settle rather than face an expensive and potentially embarrassing lawsuit. Malibu Media has made millions of dollars off of thousands of defendants without ever going to court once.

But that could all change, thanks to Baylson.

Baylson reviewed the motions of five anonymous defendants who protested against their IP addresses being subpoenaed for personal information. In a memorandum published Oct. 3, Judge Baylson notes that one of the defendants filed an unsworn declaration written by an anonymous individual:

“This declaration, which is 15 pages long, goes into great detail about the BitTorrent software and contains facts, which assuming they are true, refute many allegations in the Complaints and/or Plaintiff’s Motion for Leave to Serve Third-Party Subpoenas. Among other things, the declaration asserts that Plaintiff has brought suit against numerous unnamed defendants simply to extort settlements, that the BittTorrent [sic] software does not work in the manner Plaintiff alleges, and that a mere subscriber to an ISP is not necessarily a copyright infringer, with explanations as to how computer-based technology would allow non-subscribers to access a particular IP address. In other words, according to the declaration, there is no reason to assume an ISP subscriber is the same person who may be using BitTorrent to download the alleged copyrighted material.”

Baylson has thus decided that there is one way to settle this: a bellwether trial. A bellwether trial, according to USLegal.com, is used when a “large number of plaintiffs are proceeding on the same theory or claim and there is no other feasible way for the courts to handle the enormous caseload.” Basically, there are a bunch of cases and they’re all very similar. Therefore, the five defendants who filed motions will go to trial, and their results will be extrapolated to the other, similar cases.

The five defendants, who may remain anonymous, are allowed to enter into a joint defense agreement and ask others to join them (the Electronic Frontier Foundationmight be a good choice). Of course, on the other side, Malibu Media may also get some help from other copyright holders who see trolling as a cash cow that they’re not ready to let die.

Baylson notes that while the court cannot prevent the parties (Malibu Media and the defendants) from settling the claims outside of court, the court “assumes that Plaintiff will welcome this opportunity to prove its claims promptly pursuant to the Federal Rules of Civil Procedure, the Federal Rights of Evidence, and the copyright laws, which may, if Plaintiff is successful, lead to an injunction enjoining the practices about which Plaintiff complains.”

Baylson also states that if Malibu Media decides instead to “continue to ‘pick off’ individual John Does, for confidential settlements, the Court may draw an inference that Plaintiff is not serious about proving its claims, or is unable to do so.”

In other words -- this is the first time that actual evidence will be used in court against BitTorrent users. And we’re finally going to see if these copyright holders are able to back up their claims: that they know exactly who is responsible for file-swapping, based on IP addresses and download times. (It also means that Baylson is on to the copyright trolls, and he suspects they may never really intend to take people to court , and that they’re just using the legal system to extort money from scared users.)

This is pretty important, because, as TorrentFreak notes, the evidence-gathering techniques of file-sharing services has been described as “factually erroneous,” “unprofessional,” and “borderline incompetent.”

It’s also been proven that IP addresses do not identify file-sharers. In September, a French man was fined for illegally downloading music, even though he brought the actual admitted infringer (his soon-to-be-ex wife) to court with him.

Fight Copyright Trolls notes that Baylson recognizes it is unfair to pick the five defendants who fought the subpoenas, but he has promised that if the defendants prevail they will “have adequate remedies to recover most, if not all, of the litigation expenses and/or damages from the plaintiff.

Baylson has set an aggressive agenda for the trial, and wants the matter resolved within six months.

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