Porn Related Piracy: Forbidden To Settle?

[Len]

While an innocent defendant will perhaps be offered refuge from unnecessary embarrassment, porn pirates will eventually find a lack of safe harbors available to them.

In this digital age, it is not uncommon to see copyright infringement cases filed against John Does. Whether it is illegally downloading and distributing hit movies, music, or the latest installment of Hot [Insert Crude Reference to Body Part(s)] Vol. 23, content creators have their hands full making sure that online piracy is contained to the extent possible. While in the long run it may be a losing battle, certain companies have decided there is value in making an example out of small-fry infringers, perhaps as a deterrent to others seeking to save a few bucks by pirating an illegal (rather than just paying the price for a legitimate), copy of a movie, show, or album online.

From a legal perspective, most of these types of cases follow a similar pattern. A complaint is filed in federal court alleging copyright infringement, typically against one or more John Does identified by a specific “subscriber assigned” IP address. In the complaint, the plaintiff alleges that its investigation has uncovered illegal downloading and distribution activity, whereby one of the well-known digital file distribution networks such as BitTorrent has been used to download the copyrighted material. Thereafter, the alleged infringer is often identified by their respective IP address as also distributing the pirated copy further along using BitTorrent or a similar platform. IP addresses are typically uncovered using various digital forensic means, including geolocation technology that helps identify the likely location of the alleged infringer.

Over time, some companies have become serial plaintiffs in these types of cases. One frequent filer, Malibu Media LLC, identifies itself as a well-known distributor of pornographic films, and in a recent case pending in Maryland (MALIBU MEDIA, LLC, v. * JOHN DOE subscriber assigned IP address * 98.117.45.54)(Civ. Act. No. 17-03450-CCB) filed what it probably thought would be a routine Motion for Leave to Serve a Third Party Subpoena Prior to a Rule 26(t) Conference. The reason? Put simply, Malibu was asking for leave to send a subpoena to the Internet Service Provider (ISP) in the hopes of identifying the specific customer assigned the offending IP address on the date of the alleged infringement. Technically, IP addresses are assigned to to a customer on a given date and hour to provide access to the Internet, and can be assigned to a different customer once the first customer’s Internet session ends.

Procedurally, these types of requests are routine in copyright infringement matters centering on digital downloading activity, and the information sought is absolutely crucial to companies like Malibu who aim to identify the likely infringer they are pressing a claim against. While these types of motions are likely routinely granted, the Maryland judge decided to throw a bit of a twist at Malibu in its recent decision on the motion for leave.

First, the court noted the existence of concerns regarding the use of IP addresses as proxies for specific customers with respect to proper pleading practice and claim sufficiency. Second, the court addressed the prurient nature of the copyrighted works, and the use of shame as a settlement tactic previously employed by other plaintiffs in copyright infringement actions based on pornographic material. In fact, the court characterized the potential for the information sought being used as a catalyst for “abusive settlement negotiations” — where even innocent defendants could feel compelled to pay out in order to avoid embarrassment. The potential for that type of settlement dynamic, coupled with the inability for an IP address’s association with a customer’s computer to actually determine who engaged in the infringing behavior, suggested to the court that caution was warranted — even as it agreed to let Malibu subpoena the records.

Interestingly, the court took into account Malibu counsel’s own estimate “that 30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material. Counsel stated that the true offender is often the ‘teenaged son … or the boyfriend if it’s a lady.’” This risk of misidentification, when combined with the recognition that certain unscrupulous plaintiffs have used the information as a means of coercing payments, gave the court pause. But rather than restrict Malibu’s ability to seek the information from the ISP, the court decided to restrict Malibu’s immediate use of the information it received. In particular, the court forbid Malibu from even initiating settlement discussions with the person who the ISP subpoena identified as the user of the subject IP address. Instead, Malibu would need to seek permission from the court to initiate settlement discussions, with the actual settlement discussions to take place under Magistrate Judge supervision. At the same time, if the identified IP address user initiated settlement discussions with Malibu — and was represented by counsel — then Malibu was permitted to respond to that overture.

Ultimately, it is unusual to find a case where a court seems reticent about unfettered settlement discussions taking place. The typical experience for most IP lawyers is that courts favor settlement, and often are willing to extend resources and alter schedules so that substantive discussions can take place. When it comes to digital copyright infringement allegations for pornographic material, however, the possibility of embarrassment and the unfortunate existence of unscrupulous settlement tactics among certain plaintiffs has given at least one court a reason to monitor settlement discussions — even as that same court allowed the plaintiff to get the information it needed to press its case further along. The message? While an innocent defendant will perhaps be offered refuge from unnecessary embarrassment, porn pirates will eventually find a lack of safe harbors available to them.