Sunday, May 01, 2011
How To Sue and Discover A BitTorrent Swarm: Liberty Media, A Swarm of John Does and the Cable Privacy Act
In Liberty Media Holdings, LLC v. Swarm of November 16, 2010, Sharing Hash File A3E.... and John Does 1-95 2011 WL 1597495 (S.D. Cal. April 26, 2011), the court permitted suit and early discovery, together with claims for copyright infringement, civil conspiracy and negligence against a BitTorrent swarm that accessed and downloaded plaintiff's copyrighted work.
Plaintiff identified the copyrighted work that had been accessed and copied by the BitTorrent swarm. Plaintiff was able to identify to the court the Internet Protocol (IP) addresses of each of the members of the swarm, but was unable to serve any of the individuals because Plaintiff lacked their names and addresses.
The court found that the Cable Privacy Act, 47 U.S.C. 551(c)(1) applies. The Cable Privacy Act requires cable companies to inform subscribers before any of their confidential information is turned over.
Under Rule 26 of the Federal Rules of Civil Procedure, discovery may not commence until the parties have had a "meet and confer" under Rule 26(f). However, in rare cases where the plaintiff cannot learn the defendants' identities without limited discovery, courts may order such discovery.
From the opinion:
Although discovery usually takes place only after a defendant has been served, “[s]ervice of process can pose a special dilemma for plaintiffs in cases ... in which the tortious activity occurred entirely on-line ... because the defendant may have used a fictitious name and address in the commission of the tortious acts.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999). Accordingly, courts have, in rare cases, “permitt[ed] limited discovery to ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to permit service on the defendant.” Id. (citations omitted).
In determining whether a motion for expedited discovery should be granted to identify anonymous Internet users named as Doe defendants, courts consider whether: (1) the plaintiff can “identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court”; (2) the plaintiff has “identif [ied] all previous steps taken to locate the elusive defendant”; and (3) the “plaintiff's suit against defendant could withstand a motion to dismiss.” Id. at 578–80.
Liberty Media Holdings, LLC v. Swarm of November 16, 2010, Sharing Hash File A3E6F65F2E3D672400A5908F64ED55B66A0880B8 2011 WL 1597495, 2 (S.D.Cal.) (S.D.Cal.,2011)
The court permitted subpoenas to be served pursuant to Rule 45 of the Federal Rules of Civil Procedure on the cable companies and directed that the cable companies inform individual subscribers that their personal information was being requested. The court denied further discover due to Plaintiff's failure to specify the precise discovery sought.
Interesting that the court permitted a negligence claim against individual IP address holders to proceed.
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Labels: bittorrent, cable privacy act, copyright infringement, copyright law, corbin fisher, discovery, Fed.R.Civ.P. 26, Fed.R.Civ.P. 45, illegal downloads, john does, suing a swarm
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.