CHICAGO—In the aftermath of a series of botched raids by local and federal law enforcement on suspected child pornographers whose only crime, so to speak, was to not password-protect their wireless internet networks, a judge has cited the botched raids in what may be a watershed ruling against the plaintiiff in a mass litigant "John Doe" copyright infringement lawsuit.
The case is VPR Internationale v. Does 1-1,017. The plaintiff’s lawyer is John Steele, who readers of AVN may recall is the architect of several similar lawsuits on behalf of porn studios sick and tired of seeing their movies shared illegally on BitTorrents.
In the current case, which was filed March 8, Steele had hit a dead end with Judge Harold A. Baker, who twice denied requests by Steele for expedited discovery to subpoena internet service providers for the names associated with IP addresses already identified as belonging to alleged infringers. In one such ruling, issued March 9, Baker directed the court clerk to “refuse to issue any subpoenas to plaintiff’s counsel until further order of the court.”
On April 11, Steele filed a motion asking the court to certify for interlocutory review by the Seventh Circuit Court of Appeals one question of law: Is his client entitled to discover the known identities and contact information belonging to defendants associated with only an IP address by serving ISPs with subpoenas? Thursday, in denying the request, Baker cited the FBI raids in his reasoning against approving the motion.
“Carolyn Thompson writes in an MSNBC article of a raid by federal agents on a home that was linked to downloaded child pornography,” Baker wrote. “The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers’ Wi-Fi connections (including a secure connection from the State University of New York).”
The judge continued, “The list of IP addresses attached to VPR’s complaint suggests, in at least some instances, a similar disconnect between IP subscriber and copyright infringer. The ISPs include a number of universities, such as Carnegie Mellon, Columbia, and the University of Minnesota, as well as corporations and utility companies. Where an IP address might actually identify an individual subscriber and address the correlation is still far from perfect, as illustrated in the MSNBC article. The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”
Steele, perhaps anticipating such a response, had argued that, once served with a subpoena, ISPs are required by law to notify each targeted subscriber and the Does could then move the court to quash the subpoenas if they had been wrongly identified. But the proposed solution was not sufficient for the judge.
“The potential filing of a motion to quash is no reason to abandon the adversarial process,” he wrote.
But Baker did provide Steele with one way to keep his case alive. “In its order denying the motion for expedited discovery, the court noted that until at least one person is served, the court lacks personal jurisdiction over anyone. The court has no jurisdiction over any of the Does at this time; the imprimatur of this court will not be used to advance a ‘fishing expedition by means of a perversion of the purpose and intent’ of class actions.”
In other words, case closed unless Steele can identify and serve notice on just one of the alleged pirates in the case without using a court-ordered subpoena for the purpose.
Tuesday, TorrentFreak.com posted an article about the Baker order, referring to it as a "possible landmark ruling." The site also contains a quote from a Texas lawyer named Robert Cashman, who represents several defendants in similar lawsuits. “We may have just seen the order that may end all future John Doe lawsuits,” he says.
On his blog, Cashman elaborates: "I have always been saying that one day the courts will start catching on to what is going on in these cases," he writes. "One day, the judges will find a way to put a stop to these John Doe cases once and for all. I have no doubt this ruling is the first of many to come, where the judges stop the plaintiff in their tracks by denying them access to the ISPs’ subscriber records before a single subpoena is issued."
The VPR v Does Complaint can be accessed here.
The VPR v Does Interlocutory Request Motion can be accessed here.
The VPR v Does Interlocutory Request Order can be accessed here.
