John Does Under Fire for File Sharing

On Nov. 3, a federal jury in Minneapolis ordered Jammie Thomas-Rasset to pay the Recording Industry Association of America (“RIAA”) $1.5 million for illegally sharing copyrighted music online.

The verdict ' equal to $62,500 per song for each of the 24 tracks Thomas-Rasset was found to have shared ' was the third to go against the 33-year-old mother of four in the past three years. It was also a remnant of a bygone era ' a remnant that's nonetheless relevant to a group of lawyers following the path blazed by the music industry.

When the RIAA sued Thomas-Rasset, she was just one of thousands targeted in a litigation campaign aimed at thwarting digital file-sharing.

Almost everyone the RIAA sued settled, opting to pay what amounted to a four-figure fine ($3,500 was standard) to avoid the prospect of a judge or jury doling out damages that, by law, can reach $150,000 per act of infringement.

Thomas-Rasset insisted on taking her chances in court. In 2007, the first jury to consider the matter awarded the RIAA $9,250 per song, or $222,000. A second trial ' ordered by the judge in the case, who decided he'd given the first jury bad instructions ' found Thomas-Rasset had committed willful infringement and awarded the RIAA $80,000 per song, or $1.92 million. The judge cut that sum, which he called “shocking,” to about $54,000. When the RIAA and Thomas-Rasset still couldn't settle, the third trial was held.

Thomas-Rasset, who plans to appeal the latest verdict as unconstitutional, is one of only two people in the United States ever to go to trial over accusations of illegal music file-sharing. (The other, Joel Tenenbaum, was hit with a $675,000 jury verdict in November.) Given that the RIAA ' saying it had accomplished its mission ' abandoned the mass-lawsuit strategy two years ago, she could well be the last. (See, “RIAA Tempers Tactics,” in the February 2009 issue of Internet Law & Strategy, http://bit.ly/eF1r6v.)

Trickle-Down Effect

That doesn't mean the big RIAA awards won't come into play in other online-infringement cases. Just ask Thomas Dunlap, who says: “I think they're helpful in our cases.”

What Dunlap is referring to are the series of John Doe suits that his Virginia-based law firm, Dunlap, Grubb & Weaver (which also operates as U.S. Copyright Group (http://dglegal.force.com/SiteLogindglegal)) has brought in Virginia's Northern District against thousands of anonymous defendants who allegedly used so-called torrent technology to illegally share copyrighted content online.

Dunlap's clients are independent movie producers; the content at issue, low-budget indie films. Dunlap filed his first claim last January, suing more than 5,500 defendants for infringing the copyright on “The Hurt Locker.” Whether or not Dunlap sought publicity for his litigation campaign, making last year's Oscar winner for Best Picture the subject of his first suit pretty much guaranteed he would get it. Since then, his firm has sued thousands of additional John Does over the alleged infringement of a half-dozen other indie films, none nearly as well known as “The Hurt Locker.”

Dunlap says he first considered filing the mass suits after being approached by German technology companies that track infringement online and have previously worked with filmmakers in Europe. Through the technology companies, he says, he met independent producers eager to crack down on infringement. From there, Dunlap's firm took a hard look at the history of copyright litigation in this country. “Obviously we had to do a lot of research,” Dunlap says. “We had to come up with a way to do this where it wouldn't put a lot of capital at risk.” Did he and his colleagues study the RIAA's experience? “Oh yeah, we did, very closely. Before we filed the first suit, literally, I think I read almost every prior case.”

Corynne McSherry, a staff attorney with the Electronic Frontier Foundation (www.eff.org) who specializes in intellectual property issues, says Dunlap and others who have followed his lead by suing multiple John Does over online infringement are indeed picking up where the RIAA left off ' with at least one important distinction. “The RIAA never tried to sue thousands of people in one district,” McSherry says. “They sued hundreds in a few suits, but they didn't come to court and say, 'Yeah, I'm going to sue 5,000 people in one court because it's easier for me to do it that way.'”

The logic behind it notwithstanding, Dunlap's approach is fairly straightforward. Armed with a list of Internet protocol (“IP”) addresses through which his clients' copyrighted material is allegedly being illegally shared, he files a lawsuit listing the still-anonymous individuals attached to those IP addresses as defendants. Dunlap then asks the court to issue subpoenas compelling the relevant Internet service providers (“ISPs”) to identify and contact the owners of those addresses about the accusation being made against them. At that point, settlement discussions generally begin. Dunlap says that his clients are striking deals with defendants, though he declines to say how many. The settlement figures, he says, typically range from $1,500 to $2,900.

Those who refuse to settle, Dunlap maintains, can expect to be sued individually, by name, in the jurisdictions where they live. Interviewed in late November, he predicted that as many as 1,000 defendants would be hit with such suits before the end of 2010. He says he has lined up multiple firms around the country to act as local counsel and bring those suits to court in “every big jurisdiction to start with,” including “the Eastern District of Virginia, California, Chicago, Texas, and Florida.”

Challeges Loom

Some observers wonder whether that strategy will work. Ben Sheffner, an in-house lawyer at NBC Universal and the author of the Copyrights & Campaigns blog (http://copyrightsandcampaigns.blogspot.com), says that if money is what's motivating Dunlap and others filing mass John Doe suits, major challenges loom. “It's one thing if you can just send out hundreds of demand letters and get quick settlements,” Sheffner says. “That by itself might be a great business model. The question is what happens when people start fighting back. That can get awfully expensive awfully quick.”

People are fighting back. A number of John Doe defendants have challenged U.S. Copyright Group on the grounds that the defendants have no ties to the Northern District of Virginia and therefore can't be sued there. (Dunlap says that's what his network of local counsel is for.)

Robert Talbot, a University of San Francisco Law School professor who directs the Internet/Intellectual Property Clinic (www.usfca.edu/law/ipjustice) there, says that he and his students are advising about 40 potential U.S. Copyright Group defendants. Beyond claiming no connection to Northern Virginia, Talbot says that those seeking his advice have other solid arguments for why they shouldn't be sued for infringement ' a grandmother who only has Internet access in her home for her grandchildren to use during visits, for instance. Unfortunately, he says, the nature of the John Doe suits makes it hard to argue specifics.

“We're in a situation with these mass filings where nobody's interested in what's going on in a particular case,” Talbot says. “You have people who don't know what to do. And I guess that's the strategy because often they're willing to pay just to get out of it.”

That may be especially true with one particular batch of mass John Doe suits brought last fall. Those suits target thousands of people for allegedly sharing pornographic films online illegally.

Not Just Music Infringers Targeted

Kenneth Ford, a lawyer in Martinsburg, WV, is one of several attorneys who have filed pornography-related infringement claims. Since September, Ford, who also operates as the Adult Content Company, has brought about a half-dozen suits in West Virginia federal district court over the alleged torrent-sharing of pornographic films. In the case of one title, Ford listed 9,709 defendants in his complaint. “I'm told that we've sued more defendants in one single case than has been done in the history of the U.S.,” he says.

Ford's approach to copyright litigation closely resembles Dunlap's, which makes sense since he got his start in the mass-Doe-suit business thanks to a referral from Dunlap's firm. That many people may find the content over which he is suing offensive doesn't faze Ford. “I don't really distinguish between the mainstream and the adult films,” he says. “It's all copyright to me. And copyright holders are entitled to have their works protected.” And what makes him feel so strongly about the subject? “It's kind of my background as a musician that makes me so passionate about this.”

ISPs Balk

Now, though, Ford's passion is running up against practical concerns, namely the ability of ISPs to turn over the huge number of identities demanded in the subpoenas issued in connection with these cases. One ISP in particular, Time Warner Cable, is balking at giving those filing the John Doe copyright suits everything they want when they want it. The company, which previously filed motions to quash subpoenas in two of Dunlap's cases on the grounds that compliance would be “excessively burdensome and expensive,” moved to quash subpoenas in several of Ford's cases for similar reasons.

Time Warner, represented by Latham & Watkins, argues that the Doe subpoenas have overwhelmed the legal unit responsible for responding to such requests for information. That unit, the company claims, already responds to an average of 567 such requests each month, almost all of them coming from law enforcement. In one U.S. Copyright Group suit alone, the company was asked to turn over the identities of 809 customers. The company says that if it were to respond to all of the John Doe subpoenas immediately ' and take the time necessary to vet each identity carefully 'it “would not be able to respond to any other requests, emergency or otherwise, from law enforcement during this period.” (Latham referred questions about the matter to a company spokesman, who did not return telephone calls or e-mail messages.)

In the U.S. Copyright Group cases, Time Warner Cable did not get the subpoenas quashed, but it did persuade the judge overseeing those cases to limit the number of identities it had to disclose to 28 per month. A similar outcome seems plausible in the West Virginia cases.

“This is particularly important to pay attention to in the porn cases, because you really don't want people misidentified,” says EFF's McSherry. “I mean you don't want that to happen in any case, but especially when you know whoever is identified is immediately going to get a letter that says, 'Pay up or I'm going to name you.' You really don't want to cut corners figuring out who those people are.”

Like Dunlap, Ford says that any of the defendants who don't settle will only see their ultimate penalty climb higher. That, he says, holds true as well for customers of ISPs that don't simply hand over the information that's demanded of them. “The relatively low volume of identifying data that Time Warner is trying to give us makes it so that each one they do give us has to pay for all those that we didn't get the information for,” he says. “For Time Warner customers, if they are allowed to settle at all, they'll be [doing so at] a substantially higher figure.”

So Time Warner customers will pay the price for the ISP balking at answering the subpoenas on Ford's terms?

“That,” he says, “is a pretty good paraphrase.”

Ed Shanahan writes for The American Lawyer, an ALM affiliate of Internet Law & Strategy.

On Nov. 3, a federal jury in Minneapolis ordered Jammie Thomas-Rasset to pay the Recording Industry Association of America (“RIAA”) $1.5 million for illegally sharing copyrighted music online.

The verdict ' equal to $62,500 per song for each of the 24 tracks Thomas-Rasset was found to have shared ' was the third to go against the 33-year-old mother of four in the past three years. It was also a remnant of a bygone era ' a remnant that's nonetheless relevant to a group of lawyers following the path blazed by the music industry.

When the RIAA sued Thomas-Rasset, she was just one of thousands targeted in a litigation campaign aimed at thwarting digital file-sharing.

Almost everyone the RIAA sued settled, opting to pay what amounted to a four-figure fine ($3,500 was standard) to avoid the prospect of a judge or jury doling out damages that, by law, can reach $150,000 per act of infringement.

Thomas-Rasset insisted on taking her chances in court. In 2007, the first jury to consider the matter awarded the RIAA $9,250 per song, or $222,000. A second trial ' ordered by the judge in the case, who decided he'd given the first jury bad instructions ' found Thomas-Rasset had committed willful infringement and awarded the RIAA $80,000 per song, or $1.92 million. The judge cut that sum, which he called “shocking,” to about $54,000. When the RIAA and Thomas-Rasset still couldn't settle, the third trial was held.

Thomas-Rasset, who plans to appeal the latest verdict as unconstitutional, is one of only two people in the United States ever to go to trial over accusations of illegal music file-sharing. (The other, Joel Tenenbaum, was hit with a $675,000 jury verdict in November.) Given that the RIAA ' saying it had accomplished its mission ' abandoned the mass-lawsuit strategy two years ago, she could well be the last. (See, “RIAA Tempers Tactics,” in the February 2009 issue of Internet Law & Strategy, http://bit.ly/eF1r6v.)

Trickle-Down Effect

That doesn't mean the big RIAA awards won't come into play in other online-infringement cases. Just ask Thomas Dunlap, who says: “I think they're helpful in our cases.”

What Dunlap is referring to are the series of John Doe suits that his Virginia-based law firm, Dunlap, Grubb & Weaver (which also operates as U.S. Copyright Group (http://dglegal.force.com/SiteLogindglegal)) has brought in Virginia's Northern District against thousands of anonymous defendants who allegedly used so-called torrent technology to illegally share copyrighted content online.

Dunlap's clients are independent movie producers; the content at issue, low-budget indie films. Dunlap filed his first claim last January, suing more than 5,500 defendants for infringing the copyright on “The Hurt Locker.” Whether or not Dunlap sought publicity for his litigation campaign, making last year's Oscar winner for Best Picture the subject of his first suit pretty much guaranteed he would get it. Since then, his firm has sued thousands of additional John Does over the alleged infringement of a half-dozen other indie films, none nearly as well known as “The Hurt Locker.”

Dunlap says he first considered filing the mass suits after being approached by German technology companies that track infringement online and have previously worked with filmmakers in Europe. Through the technology companies, he says, he met independent producers eager to crack down on infringement. From there, Dunlap's firm took a hard look at the history of copyright litigation in this country. “Obviously we had to do a lot of research,” Dunlap says. “We had to come up with a way to do this where it wouldn't put a lot of capital at risk.” Did he and his colleagues study the RIAA's experience? “Oh yeah, we did, very closely. Before we filed the first suit, literally, I think I read almost every prior case.”

Corynne McSherry, a staff attorney with the Electronic Frontier Foundation (www.eff.org) who specializes in intellectual property issues, says Dunlap and others who have followed his lead by suing multiple John Does over online infringement are indeed picking up where the RIAA left off ' with at least one important distinction. “The RIAA never tried to sue thousands of people in one district,” McSherry says. “They sued hundreds in a few suits, but they didn't come to court and say, 'Yeah, I'm going to sue 5,000 people in one court because it's easier for me to do it that way.'”

The logic behind it notwithstanding, Dunlap's approach is fairly straightforward. Armed with a list of Internet protocol (“IP”) addresses through which his clients' copyrighted material is allegedly being illegally shared, he files a lawsuit listing the still-anonymous individuals attached to those IP addresses as defendants. Dunlap then asks the court to issue subpoenas compelling the relevant Internet service providers (“ISPs”) to identify and contact the owners of those addresses about the accusation being made against them. At that point, settlement discussions generally begin. Dunlap says that his clients are striking deals with defendants, though he declines to say how many. The settlement figures, he says, typically range from $1,500 to $2,900.

Those who refuse to settle, Dunlap maintains, can expect to be sued individually, by name, in the jurisdictions where they live. Interviewed in late November, he predicted that as many as 1,000 defendants would be hit with such suits before the end of 2010. He says he has lined up multiple firms around the country to act as local counsel and bring those suits to court in “every big jurisdiction to start with,” including “the Eastern District of Virginia, California, Chicago, Texas, and Florida.”

Challeges Loom

Some observers wonder whether that strategy will work. Ben Sheffner, an in-house lawyer at NBC Universal and the author of the Copyrights & Campaigns blog (http://copyrightsandcampaigns.blogspot.com), says that if money is what's motivating Dunlap and others filing mass John Doe suits, major challenges loom. “It's one thing if you can just send out hundreds of demand letters and get quick settlements,” Sheffner says. “That by itself might be a great business model. The question is what happens when people start fighting back. That can get awfully expensive awfully quick.”

People are fighting back. A number of John Doe defendants have challenged U.S. Copyright Group on the grounds that the defendants have no ties to the Northern District of Virginia and therefore can't be sued there. (Dunlap says that's what his network of local counsel is for.)

Robert Talbot, a University of San Francisco Law School professor who directs the Internet/Intellectual Property Clinic (www.usfca.edu/law/ipjustice) there, says that he and his students are advising about 40 potential U.S. Copyright Group defendants. Beyond claiming no connection to Northern Virginia, Talbot says that those seeking his advice have other solid arguments for why they shouldn't be sued for infringement ' a grandmother who only has Internet access in her home for her grandchildren to use during visits, for instance. Unfortunately, he says, the nature of the John Doe suits makes it hard to argue specifics.

“We're in a situation with these mass filings where nobody's interested in what's going on in a particular case,” Talbot says. “You have people who don't know what to do. And I guess that's the strategy because often they're willing to pay just to get out of it.”

That may be especially true with one particular batch of mass John Doe suits brought last fall. Those suits target thousands of people for allegedly sharing pornographic films online illegally.

Not Just Music Infringers Targeted

Kenneth Ford, a lawyer in Martinsburg, WV, is one of several attorneys who have filed pornography-related infringement claims. Since September, Ford, who also operates as the Adult Content Company, has brought about a half-dozen suits in West Virginia federal district court over the alleged torrent-sharing of pornographic films. In the case of one title, Ford listed 9,709 defendants in his complaint. “I'm told that we've sued more defendants in one single case than has been done in the history of the U.S.,” he says.

Ford's approach to copyright litigation closely resembles Dunlap's, which makes sense since he got his start in the mass-Doe-suit business thanks to a referral from Dunlap's firm. That many people may find the content over which he is suing offensive doesn't faze Ford. “I don't really distinguish between the mainstream and the adult films,” he says. “It's all copyright to me. And copyright holders are entitled to have their works protected.” And what makes him feel so strongly about the subject? “It's kind of my background as a musician that makes me so passionate about this.”

ISPs Balk

Now, though, Ford's passion is running up against practical concerns, namely the ability of ISPs to turn over the huge number of identities demanded in the subpoenas issued in connection with these cases. One ISP in particular, Time Warner Cable, is balking at giving those filing the John Doe copyright suits everything they want when they want it. The company, which previously filed motions to quash subpoenas in two of Dunlap's cases on the grounds that compliance would be “excessively burdensome and expensive,” moved to quash subpoenas in several of Ford's cases for similar reasons.

Time Warner, represented by Latham & Watkins, argues that the Doe subpoenas have overwhelmed the legal unit responsible for responding to such requests for information. That unit, the company claims, already responds to an average of 567 such requests each month, almost all of them coming from law enforcement. In one U.S. Copyright Group suit alone, the company was asked to turn over the identities of 809 customers. The company says that if it were to respond to all of the John Doe subpoenas immediately ' and take the time necessary to vet each identity carefully 'it “would not be able to respond to any other requests, emergency or otherwise, from law enforcement during this period.” (Latham referred questions about the matter to a company spokesman, who did not return telephone calls or e-mail messages.)

In the U.S. Copyright Group cases, Time Warner Cable did not get the subpoenas quashed, but it did persuade the judge overseeing those cases to limit the number of identities it had to disclose to 28 per month. A similar outcome seems plausible in the West Virginia cases.

“This is particularly important to pay attention to in the porn cases, because you really don't want people misidentified,” says EFF's McSherry. “I mean you don't want that to happen in any case, but especially when you know whoever is identified is immediately going to get a letter that says, 'Pay up or I'm going to name you.' You really don't want to cut corners figuring out who those people are.”

Like Dunlap, Ford says that any of the defendants who don't settle will only see their ultimate penalty climb higher. That, he says, holds true as well for customers of ISPs that don't simply hand over the information that's demanded of them. “The relatively low volume of identifying data that Time Warner is trying to give us makes it so that each one they do give us has to pay for all those that we didn't get the information for,” he says. “For Time Warner customers, if they are allowed to settle at all, they'll be [doing so at] a substantially higher figure.”

So Time Warner customers will pay the price for the ISP balking at answering the subpoenas on Ford's terms?

“That,” he says, “is a pretty good paraphrase.”

Ed Shanahan writes for The American Lawyer, an ALM affiliate of Internet Law & Strategy.