Tuesday, December 07, 2010

Standing and Bittorrent: What Next?

Earlier this year the US Copyright Group prepared a list of 20,000 potential defendants in a suit regarding copyright infringement by illegal distribution of five films: Steam Experiment, Far Cry, Uncross the Stars, Gray Man and Call of the Wild 3D.

(If you haven't heard of any of these movies, this is because the action is considered by many to be a trial run for an eventual mass-infringement lawsuit over a more lucrative major property.)

They eventually wound up submitting 4,577 to the district court, but District Judge Rosemary Collyer demanded that they only list those defendants who would reasonably be in her court's jurisdiction.

And the result?
That ruling was a dramatic blow to the US Copyright Group’s hopes of a single lawsuit that would help expedite the process and reduce the cost of litigation.

That list now stands at a mere 140, comprised of 139 Does and just one named defendant – Adrienne Neal. That’s down from the initial 4,577 it submitted to the court.
Apparently even the revised list of 140 contains defendants who are outside of the D.C. District Court's jurisdiction (the list of John Does includes downloaders in Honolulu, Chicago and California).

This is an interesting twist, because most copyright infringement lawsuits up to this point have been about filesharing through networks like Kazaa or Limewire, where participation in infringement is both obvious and immediate: you download a song, you allow the song to be uploaded, and thus you are infringing from a specific geographic location.

However, if you instead participate in a Bittorrent transfer, where you are only uploading parts of the data of a song via the Bittorrent swarm, where does the infringement take place?

The lawyers for the US copyright group seem to argue, in their amended complaint, that infringement happens at each individual point of upload, but also at point of download: there seems to be no other way around the question of standing to allow them to proceed, in a D.C. court, against someone living and committing an act of infringement in Honolulu.

The judge has not yet accepted the amended complaint; her decision in this matter may be quite important as a precedent.

If she does not accept the complaint on grounds of standing, it will potentially make future Bittorrent lawsuits extremely expensive and lawyer-intensive to conduct. Such claims will require multiple lawyers nationwide or even worldwide to initiate actions in all relevant territories and demand defendant lists in the tens of thousands to justify costs.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

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