As many of you have probably done, I have reread Judge Wright’s 6 May 13, Order blasting the Prenda Law crew. WrightPhoton_Torpedo_08333(CA) My last reread was with a pen and I turned it into a bit of an ink blot nightmare.
So what does this mean to all the other Porn Copyright Trolls, particularly Malibu Media and Keith Lipscomb. Sorry Collette – you earned the title, so enjoy it. I actually think it will also affect those non-porn BitTorrent cases that essentially use the same type boilerplate law suits and sub-standard investigations to reap the benefits of generating settlements from Does.
I expect Judge Wright’s Order to be used by many Does and Doe defenders. Even though the order was for Prenda Law, it has multiple parts that are Copyright Troll neutral and can be used with ease.
Even with blasting Prenda Law, the judge makes it clear that content owners have the right to protect their products – “so long as they do it right.” Sounds good to me. The judge goes on to highlight this business model was possible because of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. The judges states the copyright laws are being used by some lawyers to plunder citizens. OK who is the Pirate now?
Here is part of the order in which he explains what is common for BitTorrent copyright infringement cases – “Findings of fact” section of the order (section 3. page 4) –
Their litigation strategy consisted of monitoring BitTorrent download activity of their copyrighted pornographic movies, recording IP addresses of the computers downloading the movies, filing suit in federal court to subpoena Internet Service Providers (“ISPs”) for the identity of the subscribers to these IP addresses, and sending cease-and-desist letters to the subscribers, offering to settle each copyright-infringement claim for about $4,000.
The statement is nothing shocking to anyone familiar with these cases. Remove the mention of “pornographic” and it also covers all the new non-porn cases out there.
Under the “Rule 11 sanctions” section (page 6), the judge clearly lays out the reason why these BitTorrent Copyright troll cases are critically flawed. Again not a shocking revelation, but it does help lay a solid defensive foundation backed up with an order from a Federal Judge.
Plaintiffs can only show that someone, using an IP address belonging to the subscriber, was seen online in a torrent swarm. But Plaintiffs did not conduct a sufficient investigation to determine whether that person actually downloaded enough data (or even anything at all) to produce a viewable video. Further, Plaintiffs cannot conclude whether that person spoofed the IP address, is the subscriber of that IP address, or is someone else using that subscriber’s Internet access. Without better technology, prosecuting illegal BitTorrent activity requires substantial effort in order to make a case. It is simply not economically viable to properly prosecute the illegal download of a single copyrighted video.
The lack of any real investigation is key here. Without one (regardless of the cost), there is no real way to show who is the actual infringer. Even Prenda’s expert (Joshua Chin) had to admit this to Judge Wright - Prenda Expert Declaration. There are other parts of the order than can be applied to almost any BitTorrent copyright troll case – so enjoy.
So what will Lipscomb and the other Trolls do after this order? I think we may see an initial slow-down on filing, as they assess what fall-out may come from this order. Lipscomb has already been trying to take additional steps to make it look like they are not “Prenda.” These steps are minimal and mostly superficial. A Copyright Troll is a Copyright Troll. One thing Malibu Media and Lipscomb are trying to do is get someone to believe their claims that they are taking people to trial because they have real evidence. The only reason the PA Bellwether trial is ongoing is because the court is forcing it. If Lipscomb backs down, the claims of defense and others (myself included – Torpedo #7) are confirmed. We call this being between “A rock and a hard place.”
Exculpatory Evidence Letter – This is where they try to get the ISP subscriber to provide them with additional information. The letter is not written with any exculpatory intent. Any information provided will actually be used against the ISP subscriber. The Trolls have made it extremely clear in their settlement demand letters and when people try to talk to them – you are responsible - pay up or face a trial! Exculpatory Evidence Letter Post Here is a clue people – If their technical monitoring results are so good, why do they need you to respond to the letter and give them evidence???
Expanded Surveillance (BT Monitoring of activity on the identified public IP addresses) – this is their attempt to show that the ISP subscriber is a serial downloader/sharer of copyright protected movies via BitTorrent. The problem with this is two-fold: 1) It is still the public IP address and the actual offender has not been identified. 2) The content they list (other movies and media) has not been shown to be protected content. Yes, it very well might be, but let’s do the investigation and show it – not just present it to the court and infer that it is fact.
DMCA Take Down-Notices – If they actually start doing this, it could benefit them a bit. It shows they are actually trying to take some action to stop the infringement. It will also allow them to subpoena the ISP records to show how many DMCA notices a subscriber has received. This could be used to show that an ISP subscriber was notified of the alleged activity. If it can then be shown that they did nothing, it could have an impact. Note: You still need to do an investigation to show who actually did this and not make a statistical guess as to the most likely infringer. As DMCA notices are actually detrimental to the settlement generating business model, I see this as only a last-ditch effort.
As I stated before – more to come.
DieTrollDie :) “Somewhere a ship’s hull is being crushed as it sinks.”