File Sharing

October 17, 2011

Purdue Ordered to Disclose IP Address of Alleged Downloader Of Copyrighted Adult Video

Lafayette, IN – Magistrate Judge Andrew Rodovich of the Northern District of Indiana has denied a Motion to Quash Subpoena served on Purdue University of Lafayette, Indiana by Third Degree Films, Inc. of California as part of a copyright infringement lawsuit in the Northern District of California. In its suit in the Northern District of California, copyright attorneys for Third Degree alleged that 2,010 John Does infringement an adult video called “Illegal Ass 2” without its consent in violation of its copyright. Third Degree did not know the identities of the persons who allegedly illegally downloaded the copyrighted work, but did have the internet protocol (I.P.) address. Third Degree has served subpoenas on internet services providers attempting to uncover the identities of the subscribers with the specified I.P. addresses. One of these John Does, John Doe 26, was a nineteen-year-old student at Purdue University. John Doe 26 filed a motion to quash the subpoena served on Purdue in the Northern District of Indiana.

John Doe 26 argued that the subpoena should be quashed because it seeks privileged information and also is unduly burdensome. The court disagreed. Citing similar cases, the Court found that John Doe 26 does not have standing to challenge the subpoena as unduly burdensome because John Doe 26 is not required to do anything to comply. Rather, it is the internet service provider upon whom a burden is imposed.

John Doe 26 repeatedly argued that there was a high risk that he did not illegally download the video at issue here. He argued he had this I.P. address at his dorm room at Purdue, and that there was a high risk that his roommate or another resident of the dormitory downloaded the infringing video. He also argued there was a high risk the information obtained through the subpoena would damage John Doe 26’s reputation. The court noted other courts have found that these arguments did not create a privilege justifying quashing the subpoena. The decision and issues here are similar to recent activity in the First Time Video case in the Southern District of Indiana.

Practice Tip: John Doe 26 states he filed this motion to quash in the Northern District of Indiana because the California District Court does not have jurisdiction over John Doe 26. John Doe 26 states California does not have jurisdiction because he has not been served with a complaint or summons and lacks personal jurisdiction. The court did not address jurisdiction in this order.
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October 6, 2011

Southern District of Indiana Denies John Doe’s Motion to Quash Subpoena Seeking to Reveal the Identity of an IP Address That Allegedly Downloaded Adult Video in Copyright Infringement Suit

By Overhauser Law Offices, LLC

New Albany, IN – Magistrate Judge William G. Hussmann of the Southern District of Indiana has denied a Motion to Quash Subpoena filed by Defendant Doe No. 2 in First Time Video v. Indiana John Does 1-18. A copyright infringement attorney had filed a motion to quash subpoena on behalf of John Doe Number 2. Copyright lawyers for First Time Video did not know the names and addresses of the person who allegedly committed copyright infringement by downloading adult videos and had named 18 “John Does” when the suit was filed. First Time Video then served subpoenas on the internet service providers seeking the names and addresses of certain IP addresses which were alleged to have downloaded the copyrighted works. John Doe 2’s copyright attorney argued that the internet service provider subpoena should be quashed because it sought protected information and the subpoena was unduly burdensome.

The court’s order denied the motion to quash, meaning the internet service providers can be expected to turn over the names and addresses of the subscribers with the IP addresses that First Time has identified. The court’s order also reveals that John Doe 2 claims to be a woman who denies downloading the adult video. While denying the motion to quash, the Court made a very interesting notation at the end of the order:

The Magistrate Judge notes Doe No. 2’s concerns that the disclosure of her identity can lead to unwarranted embarrassing public disclosures, extortion-like attempts to force settlements, or lawsuits brought against defendants who have no liability. Those concerns are not far-fetched. However, the Rules of Professional Responsibility and Rule 11 of the Federal Rules of Civil Procedure stand as barriers to such conduct. Plaintiff’s attorneys are admonished to carefully consider these rules before determining what use to make of the information garnered from the Subpoena.

This case was previously blogged about by Indiana Intellectual Property Law News when it was filed. This is one of three suits currently pending in the Southern District of Indiana that are copyright infringement suits alleging infringement of adult videos by Indiana John Does using the BitTorrent “distribution protocol”.

Practice Tip: Pursuant Federal Rule of Civil Procedure 45(c)(3), the Court could quash a subpoena if it requests protected information or if it is unduly burdensome. The court here noted “there is no expectation of privacy in Internet subscriber information because it has already been exposed to a third party, the Internet Service Provider.” Regarding the undue burden argument, the court noted “Courts that have addressed this issue have concluded that the issuance of a subpoena to the Internet Service Provider of putative defendants does not create an undue burden on the putative defendants because they are not required to produce anything.”

September 23, 2011

Rare Criminal Conviction for Copyright Infringement for Unauthorized Online File Sharing of Film Black Swan

By Overhauser Law Offices, LLC

Los Angeles, CA – Wesley DeSoto of Los Angeles, California has pleaded guilty to a charge of criminal copyright infringement in a rare federal criminal prosecution of copyright infringement, which was brought in the Central District of California. Mr. DeSoto allegedly uploaded copies of the copyrighted films Black Swan, The Fighter, The King’s Speech, 127 Hours and Rabbit Hole on to the website The Pirate Bay. Mr. DeSoto allegedly used the bittorrent protocol to share these films in January 2011 using the username “mf34inc.” According to Wired.com, the FBI raided Mr. DeSoto’s apartment earlier this year after being alerted of the alleged infringement by the Motion Picture Association of America. Mr. DeSoto is an actor and member of the Screen Actor’s Guild. He had obtained advanced copies of the films through his SAG membership. Investigators were able to identify Mr. DeSoto as “mf34inc” by tracing username’s Internet Protocol address to Mr. DeSoto.

On September 12, 2011, Mr. DeSoto and copyright infringement attorneys at U.S. Attorney’s Office filed a plea agreement with the court. Mr. DeSoto agreed to plead guilty and the U.S. Attorney’s Office is recommending a sentence of three years of probation. The judge in the case, however, will not be bound by the sentencing recommendation. The offense carries a maximum sentence of three years of incarceration.

Practice Tip: Mr. DeSoto was charged under 17 U.S.C. § 506(1)(C), which criminalizing the distribution of a copyrighted work that is being prepared for commercial distribution by making it available on a computer network to the public. This provision was passed in 2005. Mr. DeSoto’s case is a rare prosecution under this statute.
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August 19, 2011

The Guardian Reports on BitTorrent Litigation Citing TorrentFreak Calculation That 200,000 John Does Have Been Sued

By Overhauser Law Offices, LLC

London, U.K. – The Guardian newspaper of London recently reported on the rash of BitTorrent lawsuits that have been filed in the United States. The Guardian reports on the claims of a blogger named TorrentFreak who has been vigorously tracking the BitTorrent lawsuits. Notably, TorrentFreak tracks that over 200,000 “John Does” have been named as defendants in BitTorrent-related copyright infringement lawsuits. According to these reports, a majority of the suits involve online music sharing.

TorrentFreak describes the BitTorrent-related copyright infringement lawsuits as “pay-up-or-else schemes” and describes the economics behind the suits. She notes “Copyright holders have embraced this new revenue stream by the dozen and new lawsuits are being filed every week.” The reports note that after the identity of the “John Doe” is disclosed through discovery on Internet Service Providers, the copyright holders contact the person and offer to settle for $2,500. Because most John Does prefer to pay the $2,500 rather than face legal costs and possible $150,000 fine, none of the cases have gone to trial.

Practice Tip: Indiana Intellectual Property Law News has been closely following the Bittorrent litigation recently Indiana, all of which so far involve adult entertainment file sharing, rather than music. Our reports are available here:

July 28, 2011

Another Update to Hard Drive v. 21 Indiana John Does: Attorney Files Motion to Dismiss, Court May Strike Anonymous Letters

By Overhauser Law Offices, LLC

Indianapolis, IN – There have been further updates to the Hard Drive Productions case in the Southern District of Indianathat Intellectual Property Law News has been closely following. The Hard Drive case is one of three similar copyright infringement lawsuits in the Southern District of Indiana all involving file sharing of adult entertainment videos via BitTorrent. The other two are the Boy Racer case and the First Time Videos case.

In one development, an attorney has filed a motion to dismiss and motion to quash subpoena on behalf of one of the John Does, who remains unnamed but has his or her I.P. address listed on the motion. The motion to dismiss argues that the Court does not have personal jurisdiction since the John Doe does not live in or have sufficient contacts with Indiana and that the defendants have been misjoined since none of the controversies arise out of the same facts or occurrences. The motion also argues that a subpoena that has been served on internet service provider Comcast requesting the name and identifying information for this John Doe is unduly burdensome.

In another development, the Court has ordered the authors of the anonymous letters, subject of an Intellectual Property Law News blog last month, to appear before the court and show cause why their letters should not be stricken from the record. If the authors do not appear by September 9, the Court will strike their letters from the case docket.

June 14, 2011

Boy Racer, Inc. Sues 23 Indiana John Does for Copyright Infringement of an Adult Video Via BitTorrent

By Overhauser Law Offices, LLC

New Albany, IN – Copyright lawyers for Boy Racer, Inc. of North Bellmore, New York filed a copyright infringement lawsuit in the Southern District of Indiana alleging 23 Indiana John Does infringed the copyrighted work, a video called LA PINK, which has been registered by the US Copyright Office.

Boy Racer is an adult entertainment company that produced the video at issue. The complaint alleges that the 23 individuals have unlawfully reproduced and/or distributed the copyrighted video using the BitTorrent “distribution protocol”. The complaint states that Hard Drive has the Internet Protocol address (“IP address”) of these 23 individuals and will learn their identities during discovery. Boy Racer has made claims of copyright infringement and civil conspiracy. The complaint seeks an order impounding all copies of the video, damages, and litigation expenses.

This case has been assigned to Judge Sarah Evans Barker and Magistrate Judge William G. Hussmann in the Southern District of Indiana, and assigned Case No. 4:11-cv-00070-SEB-WGH.

Practice Tip: As Indiana Intellectual Property Law News reported last month, the adult entertainment industry is using a copyright infringement litigation strategy to target online file sharing. This suit is the second filed in Indiana federal courts so far, and like the earlier suit, it targets file sharing via the BitTorrent program. Typically, the plaintiff will engage in discovery to find out identities of the persons associated with the IP addresses alleged to have infringed the copyrighted work. Once these identities are revealed to the plaintiff, the plaintiff typically reaches out to the alleged infringers to try to settle the case. If a settlement is not reached, the plaintiff will pursue further court action.