June 26, 2017

The End of a Brief Era: Recent Appellate Decisions in "Copyright Troll" Litigation

The onslaught of “copyright troll” litigation began only a few years ago, with lawsuits implicating hundreds or even thousands of “John Doe” defendants, who were identified by IP addresses with timestamps corresponding to alleged uses of BitTorrent services to share and download video content without authorization. Recently, federal appellate opinions confirmed growing consensus in district courts concerning this type of litigation.
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"Privacy Comes at a Cost" – The U.S. Supreme Court’s Opinion in Riley v. California

In Riley v. California, a cell phone search-and-seizure opinion delivered by Chief Justice Roberts for a unanimous Court last month, the U.S. Supreme Court squarely recognized, and afforded special protection to, the ubiquitous use and storage of voluminous electronic data of many different types on mobile devices today. The opinion holds that, without a warrant, law enforcement generally may not search the content of a cell phone that has been taken from an arrested individual.

This landmark decision required a distinct departure from a trilogy of U.S. Supreme Court decisions permitting the search of property found on or near an arrestee under the “incident to an arrest” exception to the requirement of a warrant under Fourth Amendment jurisprudence. Those decisions were grounded in the interests of officer safety and preservation of evidence, a limited intrusion on individual privacy, and, in one decision, the unique characteristics of the arrest of an individual in an automobile.
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The Latest in Nationwide Internet User Identification – Part 2 (the All-New, So-Called Federal Co-Conspirator Theory)

Since Part 1 in this series a few months ago, Plaintiffs have continued to file “pure bill of discovery” suits in Florida state court. These proceedings typically involve “John Does” who are accused of copyright infringement via peer-to-peer networks. The Plaintiffs (copyright-holders or their delegates) have continued to name as defendants in those “pure discovery” proceedings not the entities from whom they seek discovery (i.e., the Internet service providers) but instead John Does, from whom no discovery is sought. After filing their suits, Plaintiffs promptly seek and obtain an ex parte order for expedited discovery of the John Does’ names from the ISPs, even though the ISPs are not then represented or present in the proceeding. Because the ISPs are not technically parties, the Plaintiffs can use these orders to issue subpoenas to ISPs from across the country regardless of whether the ISPs or their subscribers would be subject to the jurisdiction of a Florida state court.

The Plaintiffs’ lawyers certainly must know that this is not right. For one thing, they tend to withdraw their subpoenas whenever it appears a court is actually going to hear the reasons why their use of the proceeding is improper.

Recently, several ISPs stood firm and proceeded to a hearing on their motions for protective order in a couple of these proceedings. The Plaintiffs’ lawyers, in typical fashion, tried to withdraw their subpoenas and argued that the judges should not listen to the ISPs’ arguments. Not surprisingly, the Plaintiffs did not fare well in an adversarial proceeding.

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