Courts quash copyright trolls; recognize IP address is not a person
Justice finally served when judges can spell 'Internet,' tell assets from IP addresses
The U.S. Supreme Court may consider corporations to be people, but three federal judges in three states have ruled that an IP address is not a person, throwing into question charges against hundreds of thousands in the U.S. accused of copyright violations, child porn, hacking and other online crimes.
Two weeks ago a federal judge in New York state denied the request of three porn studios to subpoena the names of users of 79 IP addresses from through which the studios claimed illegal BitTorrent downloads of their content had been made, according to a May 5 story from the IDG News Service.
Assuming the person paying the bills for an IP address is also the one responsible for all the activity that flows through it is "tenuous," according to the ruling by Judge Gary Brown of the U.S. District Court in Eastern New York.
"An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones," Brown wrote (full text of ruling).
Ten years ago, when associations of copyright owners such as the RIAA and MPAA extracted penalties from tens of thousands of consumers by accusing them of illegal downloads based on IP address, there were few wireless networks in private homes, most of which had only one or two computers connected to the Internet.
In 2012, 61 percent of private homes have wireless networks that allow many computers to connect using a single IP address, even computers used by neighbors cadging free wireless bandwidth or wardrivers covering their own activities by surreptitiously logging in to a stranger's network.
An IP address is not a specific person and may not even be a particular state
A federal judge in California went further: Geolocation systems used to identify the specific building assigned an IP address are so imprecise there's a 20 percent to 50 percent chance the accused doesn't even live in the same federal District Court jurisdiction their accusers claim they occupy, according to California District Court Judge Dean Pregerson in a decision issued May 1, but was reported only yesterday at TorrentFreak.
Courts have to at least know that a defendant lives within their physical jurisdiction before allowing a case to go forward whose first requirement is that the court make an exception to the First Amendment rights of ISPs or others by requiring them to surrender information about defendants whose names could not be known without that order, Pregerson ruled.
As a result of his finding, Pregerson threw out 15 suits against defendants identified only by the placeholder title "John Doe," plus an IP address and time stamp.
A Florida state judge issued a similar ruling two weeks ago, confirming that an IP address is not a person. Together the two rulings potentially invalidate hundreds of thousands of convictions and undermine settlements many complain were the result of bullying, not solid evidence and effective litigation.
As a result the tentative connection between an IP address and an individual that had been allowed, reluctantly, by judges in the past had become obsolete, Judge Brown ruled.
Since mid-2010, 220,000 people have been accused of illegally downloading movies – usually porn – using the BitTorrent network, according to U.S. News. Even the RIAA has been accused, accurately, though no one has sued it so far.
Accusers ask the court to order ISPs to identify owners of particular IP addresses, add those names to the complaints, then demand settlements or fines of $3,000 or more; if they refuse, copyright owners take them to court where fines could reach $150,000, according to U.S. News.
Many accused, uncomfortable having their names made public in accusations they are porn thieves hesitate to hire lawyers or ask courts to quash even the most outrageous, least-credible accusations, according to the Electronic Frontier Foundation (EFF).
Rulings could abolish copyright-troll extortion, but other courts must follow suit
The abusive, random nature of the accusations and financial incentive of settlements at $3,000 a head led the EFF to call the practice a scam and name those driving it as "copyright trolls."
This letter from an attorney for Io Group, Inc./Titan Media is typical of the genre. It threatens an unnamed victim with prosecution for being a porn pirate unless he/she pays a settlement fee of at least $3,375.
It also reads more like a spam scam than legitimate correspondence about a legitimate complaint. ("If you would like to take advantage of this early settlement opportunity, enter the following url into your Internet browser…" the pitch reads.)
Using IP addresses as the only real evidence, but demanding full right of discovery and supbpoena over people with a very good chance of being completely innocent is not only inherently imprecise, it "has the potential to draw numerous innocent Internet users into the litigation, placing a burden upon them that weighs against allowing the discovery as designed," Brown ruled.
That's exactly what has happened, according to the EFF, which has opposed the practice in public protests and court filings.
"It’s a business model — a kind of mass shakedown," according to EFF attorney Mitch Stoltz, as quoted in Time. "The only way it is profitable for these lawyers is if they get a bunch of small settlements from a lot of people without having to spend a lot of time in court dealing with the merits of particular cases."
The RIAA, which pioneered the aggressive pursuit of alleged content pirates and extortion of settlements from them, stopped its "so-called 'sue-them-all' campaign" within the U.S., it has continued bullying P2P networks and individuals in other countries, according to TorrentFreak.
Though strong, definite rulings in two federal and one state court should remove the assumptions under which IP-only accusations are made, other courts have to support those rulings with similar decisions of their own, Stoltz said.
Otherwise it would be up to each court and each judge to decide whether to quash accusations that have tremendous potential to be wrong and to result in disastrously expensive litigation for wrongly accused private citizens.
If they do it would send copyright trolls back to their caves until they figure out how to make accusations based on genuine evidence, not a single address that could be spoofed, misappropriated, misidentified or simply made up.
After a decade of the most ridiculous, abusive, indiscriminately punitive attempt to punish random Internet users for the financial disappointments of the entertainment industry, it would be a relief to have courts slam the door on abuses almost universally panned, even by other copyright owners.
It would be an even bigger relief to see courts follow rulings that, for once, both preserve the rights of individuals, and use an accurate understanding of how the Internet works to do it.
Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.