A Legal Blog by Aaron | Sanders, PLLC


In re BitTorrent Adult Film: Entertaining AND Educational!

Dissecting a Remarkable Ruling

* The blog title is a reference to this Order of the Stick comic. (It’s safe for work, so long as you don’t read it out loud.)

Last time we surveyed the forces that lead to this recent extraordinary magistrate’s opinion. It was handed down May 1, but already it’s become notorious for its almost gleeful taking down of the four porn-industry rights-holding plaintiffs. The key is to read the snerk-inducing footnotes. Highlights include these gems:

Footnote 7, in which the concept of “moral high ground” is discussed:
Plaintiff K-Beech’s rambling motion papers often lapse into the farcical. In its papers, counsel for K-Beech equate its difficulties with alleged piracy of its adult films with those faced by the producers of the Harry Potter books, Beatles songs and Microsoft software, and compare its efforts to collect from alleged infringers of its rights to the efforts of the FBI to combat child pornography. In an ironic turn, the purveyors of such works as Gang Bang Virgins, explain how its efforts in this matter will help empower parents to prevent minors from watching “movies that are not age appropriate” by ensuring that viewers must pay for plaintiffs products, and…

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Are Pornographers Ruining it for Everyone? Identifying and Outing Anonymous Online Copyright Infringers

Judges: Courts Aren’t Litigation Clearinghouses

Last summer, I started to blog about mass-defendant bittorrent cases pending in Washington, D.C., some of which involved over 10,000 anonymous defendants. Since the plaintiffs didn’t know who the defendants were, but they did know to IP address to which a bittorrent was sent, they would sue the defendants as “John Doe,” then ask the court for permission to send subpoenas to the defendants’ internet service providers. The subpoenas would ask for the contact information of the subscriber who was assigned that particular IP address at that particular time.* In theory, the subscriber would be your defendant, or at least someone who knew the real defendant (e.g., a family member).

* Since most consumers are dynamically assigned an IP address by their ISP for each internet session, and that IP address will likely change from session to session, you need to know not only the IP address but also the exact time the IP address was being used.

Recall that the first hurdle that the plaintiff must clear is a request for early discovery. Normally, discovery in federal court can’t start until there’s been a conference among the parties’ lawyers, which is a bit of…

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The First Amendment Right to Speak Online Anonymously

And the Legal Trail Plaintiffs Can Follow Through the Internet to You

In my last blog entry, I said I wanted to discuss this opinion, issued out of West Coast Productions Inc. v. Does, in which some independent filmmakers sued 5829 anonymous defendants for allegedly downloading their films using BitTorrent, in violation of copyright law.  This opinion is the culmination of the filmmakers’ (more or less* successful) attempt to identify the anonymous defendants, some of whom resisted pretty strenuously, so they could be named and served with process. I explained the general contours of the First Amendment right to speak anonymously, and the interests that had to be balanced.  Now I want to put these rights into some real-world context by discussing the steps the filmmakers took to learn the identities of the defendants.

*  The filmmakers won the right to learn the defendants’ identities, but they still have a few procedural hurdles, which are proving troublesome.

The filmmakers in this case found themselves with a pretty typical problem:  they knew the IP addresses that were used in carrying out the allegedly wrongful act, but that they weren’t enough to identify the actual person.  It’s usually fairly easy to figure…

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