There’s an excellent item over at Ars Technica about New York Federal Judge Gary R. Brown, who’s refusing to assist copyright trolls with their shakedown racket. The story is also covered by TorrentFreak, where you’ll find a handy copy of the judge’s full decision.
The trolls’ scam is a simple 3-step process:
- Obtain the IP addresses (typically from a BitTorrent swarm) associated with one or more video downloads.
- File a “John Doe” court action to obtain the identities of the subscribers associated with those IPs.
- Send e-mails threatening to sue but offering to settle for a few thousand dollars. Mention in passing that violating U.S. copyright law carries a penalty of up to $150,000 per infringement. Provide a link to a convenient Web site that accepts all major credit cards.
Then sit back and let the “settlements” roll in. Even Tony Soprano might be embarrassed to run such a brazenly lazy operation, but intellectual property brings out the worst in human nature. If this all sounds familiar, you’re right: The RIAA pioneered the concept years ago with its “early settlement letters” to colleges and universities, but apparently failed to patent the idea. (Perhaps they were concerned about a prior-art claim from the Mafia.)
Like spam e-mail from the Nigerian embassy or your friend stranded in Nicaragua, the scheme works by aiming at a large number of targets with an extremely low unit cost and a relatively high per-hit payoff. Even if only a tiny percentage of shots score, the return-on-investment is enormous.
The extra wrinkle here is that the infringements involve downloads of pornographic videos with names like Gang Bang Virgins and My Little Panties #2. As Judge Brown observed, this “gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated” with such titles. Again, this may sound familiar: The idea had its origins in an Internet urban legend that goes back 15 years or more. As summarized by Snopes:
A company takes out a newspaper advertisement claiming to be able to supply imported hard core pornographic videos. As their prices seem reasonable, people place orders and make payments via cheque.
After several weeks, the company writes back explaining that under the present law they are unable to supply the materials and do not wish to be prosecuted. So they return their customers’ money in the form of a company cheque. However, due to the name of the company, few people ever bother to present these to their banks.
The name of the company is: ‘The Anal Sex and Fetish Perversion Company”.
As Snopes points out, you might also have heard the idea discussed in the 1998 movie Lock, Stock & Two Smoking Barrels. (We couldn’t leave the MPAA out of the story, could we?)
Judge Brown enters the picture at Step 2 above, where the trolls ask the court to order the relevant ISPs to reveal the identity of their subscribers. After exhaustive hearings, Brown instead finds and describes “abusive litigation tactics” on the part of the plaintiffs. The abuses go beyond coercion arising from the salacious video titles. For example, by bringing a small number of cases each asking for the identities of dozens of John Does, the plaintiffs inappropriately avoided tens of thousands of dollars in filing fees, with national implications:
In the four cases before this Court, plaintiffs have improperly avoided more than $25,000 in filing fees by employing its swarm joinder theory. Considering all the cases filed by just these three plaintiffs in this district, more than $100,000 in filing fees have been evaded. If the reported estimates that hundreds of thousands of such defendants have been sued nationwide, plaintiffs in similar actions may be evading millions of dollars in filing fees annually. Nationwide, these plaintiffs have availed themselves of the resources of the court system on a scale rarely seen. It seems improper that they should profit without paying statutorily required fees.
More to the point, based on a variety of details in this and other cases involving the same plaintiffs, Judge Brown expressed skepticism that the trolls had any interest in actual litigation against the defendants, casting the entire enterprise in a different light:
This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.
Judicial decorum probably kept the judge from referring to the plaintiffs as trolls, but “shakedown” makes the point nicely.
The best part of Judge Brown’s decision is his analysis of the relationship between an IP address, the subscriber associated with that IP address, and the person who may or may not have committed copyright infringement. The trolls assert that the subscriber is the downloader, but Judge Brown cites an estimate that “30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material”. Looking at the defendants in the current case, he details example after example where the subscriber was almost certainly not the downloader. My favorite:
John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins.
And here’s Judge Brown’s money quote:
It is no more likely that the subscriber to an IP address carried out a particular computer function than to say an individual who pays the telephone bill made a specific telephone call.
Well said, Your Honor.