A federal magistrate has determined that lawsuits for downloading copyrighted adult pornography on peer-to-peer networks against unknown defendants must be brought individually. In re Bittorrent Adult Film Copyright Infringement Cases, 2012 U.S. Dist. LEXIS 61447 (E.D.N.Y. 2012). Many recent cases involved thousands of IP addresses being given to the court with no further evidence, prompting the judge to evaluate whether an IP address alone is sufficient to state a claim. Because there is no other remedy, the plaintiffs should be allowed to proceed.
The plaintiffs sought to require ISPs to identify their customers by the IP addresses that had been found downloading the videos on BitTorrent. Several of the John Does had sought to quash for a variety of reasons, including:
- Being at work at the time of the download
- The account had been closed because it was compromised by a hacker
- Doe was "an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download the file"
- Downloading the video was "contrary to [a Doe's] 'religious, moral, ethical, and personal views'" and her wireless router was unsecured
The complaints assert that the defendants — identified only by IP address — were the individuals who downloaded the subject "work" and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time. An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones.... Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function — here the purported illegal downloading of a single pornographic film — than to say an individual who pays the telephone bill made a specific telephone call.The court also acknowledged that wireless routers make this assumption even stronger. "Different family members, or even visitors, could have performed the alleged downloads." As a result, an IP address does not sufficiently identify the alleged copyright violator.
Distinguished from this scenario was the case in Arista Records (2d Cir. 2010). There, the defendant was using a university network where the exact user could easily be determined. They had also downloaded hundreds of files, making "it far more likely that the subscriber to the IP address would have conducted or at least been aware of the illegal downloading."
However, because the plaintiffs would be left without a remedy to protect their works, they should be allowed to proceed - but not with swarm joinder which is a "waste of judicial resources." Future actions must be filed against individual defendants "so as to avoid unfair outcomes, improper joinder and waste of judicial resources, and to ensure the proper payment of filing fees." Thus, the judge recommended that the complaints be dismissed to all defendants other than John Doe I.