IP addresses as evidence in copyright cases to be tested

A United States federal judge presiding over a mass copyright infringement case in Pennsylvania will test whether or not evidence brought to court by rights holders stands up.

Last week, Justice Michael Baylson ordered a so-called Bellwether trial, which could determine how the federal court treats its full caseload of copyright claims. 

The trial names a single plaintiff and selects a few defendants out of a large number involved in a single infringement case, to resolve issues around the usage of the BitTorrent file sharing protocol and how the accused are identified by rights holders.

The Bellwether trial was brought about by a declaration from an anonymous defendant in another infringement case. The defendant, using the pseudonym DieTrollDie, blogged about their experience.

"Among other things, the declaration asserts that the BitTorrent software does not work in the manner the plaintiff alleges and that a mere subscriber to an ISP is not necessarily a copyright infringer, with explanations as to how computer-based technology would allow non-subscribers to access a particular IP address," Justice Baylson wrote.

According to the declarant, "there is no reason to assume an ISP subscriber is the same person who may be using BitTorrent to download the alleged copyrighted material," Justice Baylson continues, and a trial is needed to decide who is right on these issues.

The allegations of copyright infringement have been brought by adult movie studio Malibu Media.

File sharing news site Torrent Freak reported that Malibu Media has filed 349 mass lawsuits this year, accusing thousands of people of infringing copyright and requesting a monetary settlement from them.

This is the first time, however, that Malibu Media's evidentiary claims have been tested by a court.

Flood of mass claims

Mass legal claims by adult movie studios and other rights holders against ISP customers are increasingly common overseas.

In March this year, a British judge ordered telco O2 to hand over personal details of over 9000 of its broadband subscribers to two adult movie studios which, in turn, intended to send out letters threatening legal action unless money was received to compensate for illegal file sharing.

In January this year, a British lawyer who sent out thousands of letters speculatively accusing ISP subscribers of illegal file sharing was suspended by the Solicitors' Regulation Authority (SRA), according to a report by the BBC.

Andrew Crossley and his law firm ACS: Law demanded money from around 20,000 people from 2009 and onwards, alleging they had downloaded content, often adult material, without paying for it.

If users didn't pay a fee of £500 ($783), ACS: Law threatened to take them to court.

Crossley's speculative invoicing scheme met with a massive backlash and unravelled as cases went to court.

According to lobbyist group Electronic Frontier Foundation, several rights holders and adult movie studios are currently engaged in mass legal actions against alleged file shares, requesting between US$1500 to US$3000 ($1470 to $2938) per case to settle the claims.

If alleged infringers choose to contest the claims, rights holders such as the US Copyright Group threaten far larger damages, up to US$150,000 ($147,000) per downloaded film.

To date, over 50,000 people across the United States have received claims from adult movie makers, EFF said, and the total number is is thought to be over 200,000 including those who have already settled.