Whether you are an adamant opponent of Internet Trolling, or a copyright holder trying to protect your work, a case tried earlier this month in Pennsylvania may change the climate of bittorrent copyright lawsuits altogether, shifting the online infringing environment. The case of Malibu Media v. Does, is the first case of its kind to go to trial, and will most likely set the pace for future claims brought under copyright law. While bittorrent cases, as in the Prenda Law cases, which received great attention last month, have entirely settled out of court, the verdict in Malibu Media stands as a symbol that bittorrent suits can and will be litigated from start to finish. The suit is also a wake up call for copyright law defense attorneys, and their clients.
According to the Nashville City Paper, bittorrent lawsuits start with BitTorrent software, which is a platform for users to search for entertainment-based files, such as movies and music, and share them on a peer-to-peer network. BitTorrent software allows large files to be shared in segments from individual computes, rather than from one central server. Plaintiff copyright holders can find the Internet Protocol (IP) address connected to the shared copyrighted work and file lawsuits against the IP address owner, either in single defendant suits or in batches of defendants. After suit is filed, plaintiffs can then determine the identity of the IP address owners by subpoenaing internet service providers, who are required to notify the IP address owners that they have 30 days to either settle or quash the subpoena, or their identities will be released. If the IP address owner does not settle, or quash the subpoena, the plaintiff will then amend his or her complaint to add the name the IP address owner. In the case of the Prenda Law suits, the nature of the allegedly infringed work was pornographic. Thus, Prenda lawyers were able to secure a high volume of settlements, which later garnered much attention.
Likely due in part to the “hush-hush” nature of the Prenda Law cases, a bittorrent suit had never secured a verdict until now. According to a post by Jordan Rushie (counsel for Malibu Media) on Philly Law Blog, a Pennsylvania Judge ordered Malibu Media to take one of its copyright infringement cases to trial, to test whether it was an abusive bittorrent trolling case or not. Earlier this month, on June 10, Malibu Media lawyers proved that a bittorrent case could go all the way to a verdict when they secured a $112,500 verdict against one of the John Doe defendants named in the suit. This amount would be increased to around $500,000 after attorney’s fees.
The Malibu Media suit was a Bellwether Trial, meaning that it was essentially a sample trial to try the claims common to a large volume of plaintiffs to predict a trend in future suits brought on the same claim or theory. Mr. Rushie notes five things that he believes interested parties can take away from the Malibu Media trial:
· Copyrights will be enforced by courts, regardless of whether they are pornographic in nature;
· BitTorrent lawsuits can be backed up by credible and reliable evidence;
· IP addresses can be used as evidence that infringement occurred via that address;
· The nature of the discovery process in civil litigation makes perjury and evidence tampering a very real concern for defendants trying to cover their tracks; and
· BitTorrent attorneys must take BitTorrent suits more seriously now, and cannot simply advise to hide the evidence and offer a small settlement, or file a motion to sever or quash.
Whether you agree with Mr. Rushie or not, the fact remains that bittorrent lawsuits are clearly being taken more seriously by the courts, and, defendants accused of bittorrent copyright infringement must accordingly take serious steps to defend themselves against copyright infringement claims. If you have been named as a defendant in a copyright infringement suit, your best defense is to contact an experienced copyright defense attorney. Call the law office of Edward R. Molari today for a confidential consultation.