Developments in Copyright Enforcement
Is it getting easier or harder to fight online piracy? Both at once, it seems.
On the one hand, courts are becoming a lot more skeptical of large-scale piracy lawsuits, especially those that make accusations based on the Internet accounts used to pirate content -- but on the other, a new, private system for warning infringers might be working.
The most recent development in copyright lawsuits is a decision out of the D.C. Circuit Court of Appeals. Though the backstory is rather complicated, involving a much-reviled attorney and his former law firm, the case will set a precedent when it comes to other cases filed in the circuit, and it reflects a broader trend in the federal courts.
The plaintiff identified more than 1,000 IP addresses that had allegedly been used to pirate a pornographic film. Each IP address is linked to an account at an Internet Service Provider (ISP) -- the person who pays for the account may not be the actual pirate, but they're certainly a good place to start when it comes to settling a case or investigating it further. So, the firm filed a single lawsuit against all these "John Does" combined and tried to get their identities from the ISPs.
The ISPs, with the aid of some advocacy groups including the Electronic Frontier Foundation, said they shouldn't have to turn over the information. The district court disagreed, but the appeals court overturned the decision, siding with the ISPs.
The appeals court has a decent legal argument. The court where the case was filed has a limited geographical jurisdiction, and there was no reason to believe that the account holders lived in it -- in fact, some of the targeted ISPs didn't even offer service there. The plaintiff was using the discovery process in one jurisdiction to get information about defendants and infringing activity elsewhere. Further, it's not clear the 1,000+ defendants should have been brought together in a single case; some of the infringing actions, though involving the same BitTorrent file, had taken place months apart.
There are some problems with the way cases like this one unfold after the account holders are identified, too. As EFF has pointed out, people are often sued in a court far from where they live, and the inconvenience and expense of defending themselves likely encourage them to settle instead. Another factor stacking the deck in favor of settlement is that damages for infringement can run extremely high. A typical chain of events is for a single copyright holder to send a blizzard of letters threatening legal action, settle with everyone who's willing, and call it a day rather than rack up expenses pursuing the others in court.
But with all of that said, I appreciate the efficiency of having ISPs identify many different infringers at once and proceeding from there, rather than making copyright holders file a large number of lawsuits before they even know who the defendants are and how many will settle out of court. (And I certainly don't see why you'd denigrate as a "copyright troll" everyone who responds to mass-scale infringement with an attempt to identify infringers on a mass scale, as seems pretty common in the coverage of these cases.)
Perhaps legislators could set up a two-step process, with ISPs coughing up subscriber identities in the first step and people sued locally, with reasonable damage caps, in the second. A guy can dream, right?
Less complicated -- and more encouraging for us stalwart copyright supporters -- is a new system that has been implemented through the cooperation of ISPs, content owners, and other parties (with the, er, encouragement of some law-enforcement officials). Essentially, the content owners identify IP addresses used for infringement, and then the ISPs -- without divulging identities to the content owners -- use "graduated response" to deal with the offending accounts: They start with mild warnings and escalate to slowing down offenders' Internet service. Those who believe they have been falsely accused can fight their case in arbitration.
I'm not the biggest fan of this approach for a variety of reasons. I like the idea of graduated response, but I don't think it should be completely privately administered, and I wish the consequences for repeat violations were harsher. But on the upside, even copyright-critical folks like Jerry Brito have been somewhat supportive of it -- rather than sending pirates to court and hitting them with massive damages, it treats them like small-time miscreants.
How's it working? The Center for Copyright Information, the group that administers the system, has a new report we feature in our update today. The group claims its efforts have been successful, and it plans to expand them. Fewer than 3 percent of the alerts were sent in the "final mitigation stage" of the graduated-response process, suggesting that pirates were knocking it off (or getting better at not being caught) when they received warnings. Very few cases went to arbitration, and not a single "false positive" (where an IP address was identified that hadn't actually been used for infringement) was found.
That's something, at least.
Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen