Judge Distinguishes Subpoenas over BitTorrent Sharing

Not all file-sharing websites are created equal, according to U.S. District Court Judge Beryl A. Howell of the U.S District Court for the District of Washington.

Howell, writing in a series of opinions in May denying protective orders for potential defendants in separate but similar copyright infringement cases, noted that while similar orders had been granted in other file-sharing suits, the nature of the site in question, BitTorrent, raised new issues. “The plaintiff has provided detailed allegations about how the BitTorrent technology differs from other peer-to-peer file-sharing programs and necessarily engages many users simultaneously or sequentially to operate,” Howell wrote in Voltage Pictures LLC v. Does 1-5,000, 10-0873. The opinions were all similarly worded.

In the underlying cases, four movie production and distribution companies sued hundreds of unnamed defendants for illegally downloading copyrighted movies through BitTorrent. In order to uncover their identities and properly file suit, the plaintiffs subpoenaed Internet service providers to turn over the identities of users tracked through IP addresses. Time Warner contested the request to turn over its customers' information, but in March 2011 Howell denied the company's motion to quash the subpoenas.

For every IP address identified, the service providers have been sending letters notifying users that their identity has been subpoenaed and that they have a right to challenge the release of their information in court. In the four different cases addressed by Howell, putative defendants who received notification were challenging the release of their information, disputing that they had engaged in illegal downloading.

Howell denied all of the requests, writing that it was too early for factual disputes. “A general denial of liability, however, is not a basis for quashing the plaintiff's subpoenas and preventing the plaintiff from obtaining the putative defendants' identifying information,” Howell found. “That would deny the plaintiff access to the information critical to bringing these individuals properly into the lawsuit to address the merits of both the plaintiff's claim and their defenses,” she wrote.

The district judge contrasted BitTorrent, where files are downloaded by piecing together data from multiple users, to sites like Napster, where files were downloaded from a single user. In those earlier cases relating to sites like Napster, some courts had granted motions for severance, finding that the single-person model failed to meet the prima facie test for enjoinder.

Nicholas Kurtz of Washington, DC's Dunlap, Grubb & Weaver is representing the companies in their respective BitTorrent suits.

Not all file-sharing websites are created equal, according to U.S. District Court Judge Beryl A. Howell of the U.S District Court for the District of Washington.

Howell, writing in a series of opinions in May denying protective orders for potential defendants in separate but similar copyright infringement cases, noted that while similar orders had been granted in other file-sharing suits, the nature of the site in question, BitTorrent, raised new issues. “The plaintiff has provided detailed allegations about how the BitTorrent technology differs from other peer-to-peer file-sharing programs and necessarily engages many users simultaneously or sequentially to operate,” Howell wrote in Voltage Pictures LLC v. Does 1-5,000, 10-0873. The opinions were all similarly worded.

In the underlying cases, four movie production and distribution companies sued hundreds of unnamed defendants for illegally downloading copyrighted movies through BitTorrent. In order to uncover their identities and properly file suit, the plaintiffs subpoenaed Internet service providers to turn over the identities of users tracked through IP addresses. Time Warner contested the request to turn over its customers' information, but in March 2011 Howell denied the company's motion to quash the subpoenas.

For every IP address identified, the service providers have been sending letters notifying users that their identity has been subpoenaed and that they have a right to challenge the release of their information in court. In the four different cases addressed by Howell, putative defendants who received notification were challenging the release of their information, disputing that they had engaged in illegal downloading.

Howell denied all of the requests, writing that it was too early for factual disputes. “A general denial of liability, however, is not a basis for quashing the plaintiff's subpoenas and preventing the plaintiff from obtaining the putative defendants' identifying information,” Howell found. “That would deny the plaintiff access to the information critical to bringing these individuals properly into the lawsuit to address the merits of both the plaintiff's claim and their defenses,” she wrote.

The district judge contrasted BitTorrent, where files are downloaded by piecing together data from multiple users, to sites like Napster, where files were downloaded from a single user. In those earlier cases relating to sites like Napster, some courts had granted motions for severance, finding that the single-person model failed to meet the prima facie test for enjoinder.

Nicholas Kurtz of Washington, DC's Dunlap, Grubb & Weaver is representing the companies in their respective BitTorrent suits.