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., 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.
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

1 comment:

Yechiel said...

Ray, just to make sure you do not end up on the wrong side of the issue, these plaintiff attorney (trolls) are suing hundreds or thousands of defendants in each case using the expedited discovery tool to subpoena the ISPs.

However, once they find out who the defendants are, instead of proceeding against them in court as they should, they are extorting users by sending threatening letters and phone calls demanding that they "pay up or else" to the tune of thousands of dollars "because settling is cheaper than defending your case in court."

I would appreciate seeing more information on the defense side of this issue to defeat these expedited motions and/or addressing discovery issues relating to digital forensics, spoliation, etc.