iBalancing Individual John Doe Defendants’ Privacy Rights With Strike 3’s Right to Pursue Its Copyright Infringement Claims
Digital piracy on peer-to-peer networks can have severe financial consequences for copyright holders. As one member of Congress put it:
Under U.S. law, stealing intellectual property is just that—stealing. It hurts artists, the music industry, the movie industry, and others involved in creative work. And it is unfortunate that the software being used—called “file sharing,” as if it were simply enabling friends to share recipes, is helping create a generation of Americans who don’t see the harm. [1]
As digital pirates increasingly use BitTorrent and other peer-to-peer networks to share media, copyright holders have pressed the courts for recourse. To combat losses from peer-to-peer file sharing, copyright holders have filed a spate of lawsuits against infringers in federal courts across the country. See, e.g., BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293, 298-99 (4th Cir. 2018); Killer Joe Nevada, LLC v. Does 1-20, 807 F.3d 908, 910 (8th Cir. 2015); Dallas Buyers Club, LLC v. Madsen, 2015 U.S. Dist. LEXIS 148445 at *1 (W.D. Wash. Nov. 2, 2015) (noting that the action is “one of 13 practically identical cases filed” alleging BitTorrent users’ infringement of the movie Dallas Buyers Club).
These suits are not without controversy: many involve “copyright trolls” who buy up copyrights to adult films and then sue masses of unknown BitTorrent users for illegally downloading pornography. [2]
Peer-to-peer networking involves a “decentralized infrastructure whereby each participant in the network . . . acts as both a supplier and consumer of information resources.” [3] In other words, “peers” download content from fellow peers, while leaving their own folders of digital content available for others to download. One type of peer-to-peer networking involves the BitTorrent protocol, in which a file is broken up into smaller pieces from various peers and then reassembled upon completion of a download. With BitTorrent, “each user is both downloading and uploading several different pieces of a file from and to multiple other users.” [4] Peer-to-peer networks like BitTorrent are “ideally suited for sharing large files, a feature that has led to their adoption by, among others, those wanting access to pirated media, including music, movies, and television shows.” [5]
BitTorrent is a system designed to quickly distribute large files over the Internet. Instead of downloading a file, such as a movie, from a single source, BitTorrent users are able to connect to the computers of other BitTorrent users in order to simultaneously download and upload pieces of the file from and to other users. To use BitTorrent to download a movie, the user has to obtain a “torrent” file for that movie, from a torrent website. The torrent file contains instructions for identifying the Internet addresses of other BitTorrent users who have the movie, and for downloading the movie from those users. Once a user downloads all the pieces of that movie from the other BitTorrent users, the movie is automatically reassembled into its original form, ready for playing on the recipient’s device.
Strike 3 hires forensic investigators to tap into BitTorrent and track the uploading and downloading of the hash files that comprise its copyrighted adult film works. Using specially designed software and tools, the investigators can ascertain when an IP address is used to download all of the hash files for a complete movie. The investigators then continue to monitor that IP address for months or years until the number of tracked downloads triggers Strike 3 to take legal action (usually more than 20).
When John Doe’s IP address is named in a complaint, John Doe is none the wiser until he/she receives a letter from his/her Internet Service Provider (“ISP”) (such as Comcast, Verizon, AT&T, Time Warner, etc.) informing John Doe of a subpoena the ISP received directing it to reveal John Doe’s name and address to Strike 3. Thus, John Doe is forced to deal with a lawsuit alleging illegal downloading of pornographic materials even though Strike 3 does not yet have any actual proof that John Doe – as opposed to some other individual with access to John Doe’s Wi-Fi – was the internet user who actually downloaded Strike 3’s films.
This of course implicates privacy concerns and the potential for reputational harm of an innocent John Doe being named in or associated with a salacious lawsuit. That is why courts insist on anonymity and protective orders to protect a John Doe’s privacy while still allowing Strike 3 to obtain the information it needs to prosecute its case.
In balancing John Doe Defendants’ privacy interests with Plaintiff’s right to pursue those who anonymously violate its intellectual property rights, many courts find that entry of a limited protective order strikes the right balance between Strike 3’s interests and individual defendants’ misidentification and invasion of privacy concerns. See, e.g., Manny Film LLC v. Doe Subscriber Assigned IP Address 50.166.88.98, 98 F. Supp.3d 693, 696 (D.N.J. 2015) (granting expedited discovery but directing the internet service provider to provide the internet subscriber with a copy of the order and a copy of the subpoena received from the plaintiff and upon receipt of the order and the subpoena, granting the internet subscriber twenty-one (21) days to quash the subpoena or move in the alternative for a protective order. Further, the court ordered that the ISP shall not provide any responsive information to the plaintiff until the latter of the expiration of twenty-one (21) days or resolution of any motion to quash or for a protective order); Strike 3 Holdings, LLC v. Doe, 2019 U.S. Dist. LEXIS 168379, at *7 (D.N.J. Sept. 30, 2019) (declining to issue a protective order but permitting the plaintiff to proceed anonymously); Strike 3 Holdings, LLC v. Doe, 330 F.R.D. 552, 556-57 (D. Minn. 2019) (entering a comprehensive, multifaceted protective order to aid in protecting privacy interests and limit risks of embarrassment and misidentification); Malibu Media, LLC v. Doe, 2013 U.S. Dist. LEXIS 189452 at *2 (D.N.J. Aug. 19, 2013) (limiting the scope of a pre-Rule 26(f) conference subpoena to a subscriber’s name and address); Voltage Pictures v. Doe, 2013 U.S. Dist. LEXIS 155356, at *9-10 (D.N.J. May 31, 2013) (granting leave to serve subpoena requesting only the name, address, and media access control address associated with a particular IP address).
[1] Privacy and Piracy: the Paradox of Illegal File Sharing on Peer-To-Peer Networks and the Impact of Technology on the Entertainment Industry: Hearing Before the S. Comm. on Governmental Affairs, 108th Cong. 10-14 (2003) (statement of Sen. Levin); see also id. at 1-2 (statement of Sen. Boxer) (asserting that “downloading copyrighted works is theft” and “is a real problem”).
[2] Glacier Films (USA), Inc. v. Turchin, 896 F.3d 1033, 1035 (9th Cir. 2018).
[3] Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1024 (9th Cir. 2013).
[4] Fung, 710 F.3d at 1027.
[5] Id. at 1025; see also Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919-20 (2005).
