October 22, 2017

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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The Latest in Nationwide Internet User Identification – Part 1 (The Ancient State Law "Pure Bill of Discovery")

Plaintiffs are engaging in aggressive and questionable new tactics in a growing wave of federal copyright “John Doe” lawsuits. In those lawsuits, the obvious objective of the plaintiffs is to discover from Internet Service Providers (ISPs) the personal identities of many of the ISPs’ subscribers. The plaintiffs typically present the ISPs with long lists of subscriber IP addresses that have allegedly been used in copyright infringement. Many of these plaintiffs have generated a business model around such suits and are often referred to as “copyright trolls“. The orders permitting “John Doe” discovery necessarily precede the naming of the defendants, and many if not most defendants are likely to settle rather than bear the expense of a defense (not to mention, in many cases, the embarrassment of association with pornographic works). Thus, at least for those defendants, the lawsuits effectively begin and end when their names and contact information are provided to the plaintiffs. Many of the copyright plaintiff attorneys would have it no other way – operating form-based lawsuit “factories” and harvesting settlements, and getting out without presenting any evidence at trial.

The response of the federal judges has been mixed. Many of them just grant the requested relief. In the interest of protecting privacy rights, a few judges have properly appointed attorneys ad litem to represent the unidentified Does. Some have decided that the joinder of numerous defendants in a single lawsuit is improper, and dismissed all the Does except for a single John or Jane. Others have required that the plaintiffs demonstrate a good faith belief that the subscriber-defendants reside in the forum and/or are otherwise subject to the personal jurisdiction of the court.

More recently, the copyright plaintiffs are turning to the state courts – an odd tactic given that copyright infringement claims may only be asserted in federal court. Remember, though, that these plaintiffs appear to be far more interested in the personally identifiable information of Internet subscribers (and coercing settlements), than in the actual pursuit of litigation. As such, they are simply motivated to seek, in the least number of lawsuits, as many Internet subscriber identifications for as many IP address/date/time stamps from as many ISPs as possible.

Consistent with such an objective, the plaintiffs’ lawyers have dusted off an ancient proceeding known as a “pure bill of discovery” – an equitable action that originated in the 19th century, before discovery was even available in legal proceedings under common law. As it turns out, this action is still available under a narrow set of circumstances in some states, including Florida, primarily where discovery is not otherwise obtainable and there is no adequate remedy at law.

Plaintiffs use this action to seek discovery in state court – presumably to avoid some of the same hurdles encountered in federal court. In Florida (the preferred jurisdiction so far), they contend that they should be permitted to file a “pure bill of discovery” for any alleged infringement, so long as they can somehow connect the alleged infringement to that jurisdiction (for example, because another alleged member of the same BitTorrent “swarm” – who could even be the plaintiff’s forensic investigator – was allegedly located in Florida).

But these plaintiffs aren’t using the “pure bill of discovery” the way it is supposed to work.

Because the “pure bill of discovery” is for the sole purpose of obtaining discovery, the “defendants” in such an action should be the person from whom the information is sought. Here, that would be the ISPs. However, suing dozens and dozens of ISPs located across the country in a Florida state court could be inconvenient and costly to the plaintiffs given that the ISPs would need to be served with process and a significant number of the ISPs would likely resist. In addition, if there were actual adversaries (i.e., ISP defendants), the plaintiffs would have to demonstrate their rights and convince the court that they are entitled to relief in an adversarial hearing before an order could be issued and before any subpoenas could be issued.

Preferring otherwise, the plaintiffs are suing the (unrepresented, unnamed, and defenseless) Doe defendants in their “pure bill of discovery” actions. That doesn’t make sense, you may say, because the plaintiffs are not seeking any discovery from the Does. True – in a “pure bill of discovery” action, the plaintiff has to be seeking discovery from the defendants in that action. To address this detail, the plaintiffs’ lawyers fictionally assert that they are seeking to require the Does to “confirm” that the identifying information to be provided by the ISPs is “accurate.” And, naturally, before the Doe defendants can “confirm” that they are who they are said to be, the plaintiffs need to uncover their names. So, after filing the lawsuit in a state court, the plaintiffs file an ex parte motion for discovery seeking to issue discovery requests to a long list of ISPs located across the nation (many beyond the state court’s jurisdiction), to obtain the personally identifiable information of hundreds of individual subscribers (i.e., the John Does). These ex parte motions actually get granted tout de suite.

Although the ISPs (much less the John Does) don’t have any opportunity to be heard beforehand, the ISPs can oppose the discovery requests once those requests are served on them. As a practical matter, though, most of the ISPs don’t; and those that do may simply be met with a voluntary dismissal by the plaintiff (as to those Does only), who would presumably rather not have the court actually hear the arguments made. Thus, the plaintiffs for the most part can readily obtain the necessary personally identifiable information to threaten to sue the alleged infringers (in federal court) and, in all likelihood, obtain quick settlement.

To the extent these plaintiffs get away with it, they have found a way to obtain a court order without opposition that permits nationwide identification of mass defendants in a single lawsuit. Assuming the Doe defendants settle, and anecdotal evidence suggests that many do, bothersome details such as service of process, personal jurisdiction, venue, joinder, and even advocacy in a court of law can be avoided entirely.

And why stop with seeking federal copyright claims? If these proceedings can actually be used in the way the plaintiffs are using them, there’s no reason why anyone couldn’t sue in Florida state court in order to get identifying subscriber information for subscribers located anywhere, from any ISP or other communications provider, under any legal theory. It seems to be the perfect tool of stealth and expedience, unless you happen to believe in the protection of fundamental individual rights and that the role of our judicial system is to resolve cases or controversies. It is hard to imagine that this antediluvian equitable action was intended to serve as a settlement weapon in abusive mass copyright litigation.

Erroneous DMCA notices and copyright enforcement, part deux

A few weeks ago, I wrote about a deluge of DMCA notices and pre-settlement letters that CoralCDN experienced in late August. This article actually received a bit of press, including MediaPost, ArsTechnica, TechDirt, and, very recently, Slashdot. I’m glad that my own experience was able to shed some light on the more insidious practices that are still going on under the umbrella of copyright enforcement. More transparency is especially important at this time, given the current debate over the Anti-Counterfeiting Trade Agreement.

Given this discussion, I wanted to write a short follow-on to my previous post.

The VPA drops Nexicon

First and foremost, I was contacted by the founder of the Video Protection Alliance not long after this story broke. I was informed that the VPA has not actually developed its own technology to discover users who are actively uploading or downloading copyrighted material, but rather contracts out this role to Nexicon. (You can find a comment from Nexicon’s CTO to my previous article here.) As I was told, the VPA was contracted by certain content publishers to help reduce copyright infringement of (largely adult) content. The VPA in turn contracted Nexicon to find IP addresses that are participating in BitTorrent swarms of those specified movies. Using the IP addresses given them by Nexicon, the VPA subsequently would send pre-settlement letters to the network providers of those addresses.

The VPA’s founder also assured me that their main goal was to reduce infringement, as opposed to collecting pre-settlement money. (And that users had been let off with only a warning, or, in the cases where infringement might have been due to an open wireless network, informed how to secure their wireless network.) He also expressed surprise that there were false positives in the addresses given to them (beyond said open wireless), especially to the extent that appropriate verification was lacking. Given this new knowledge, he stated that the VPA dropped their use of Nexicon’s technology.

BitTorrent and Proxies

Second, I should clarify my claims about BitTorrent’s usefulness with an on-path proxy. While it is true that the address registered with the BitTorrent tracker is not usable, peers connecting from behind a proxy can still download content from other addresses learned from the tracker. If their requests to those addresses are optimistically unchoked, they have the opportunity to even engage in incentivized bilateral exchange. Furthermore, the use of DHT- and gossip-based discovery with other peers—the latter is termed PEX, for Peer EXchange, in BitTorrent—allows their real address to be learned by others. Thus, through these more modern discovery means, other peers may initiate connections to them, further increasing the opportunity for tit-for-tat exchanges.

Some readers also pointed out that there is good reason why BitTorrent trackers do not just accept any IP address communicated to it via an HTTP query string, but rather use the end-point IP address of the TCP connection. Namely, any HTTP query parameter can be spoofed, leading to anybody being able to add another’s IP address to the tracker list. That would make them susceptible to receiving DMCA complaints, just we experienced with CoralCDN. From a more technical perspective, their machine would also start receiving unsolicited TCP connection requests from other BitTorrent peers, an easy DoS amplification attack.

That said, there are some additional checks that BitTorrent trackers could do. For example, if the IP query string or X-Forwarded-For HTTP headers are present, only add the network IP address if it matches the query string or X-Forwarded-For headers. Additionally, some BitTorrent tracker operators have mentioned that they have certain IP addresses whitelisted as trusted proxies; in those cases, the X-Forwarded-For address is used already. Otherwise, I don’t see a good reason (plausible deniability aside) for recording an IP address that is known to be likely incorrect.

Best Practices for Online Technical Copyright Enforcement

Finally, my article pointed out a strategy that I clearly thought was insufficient for copyright enforcement: simply crawling a BitTorrent tracker for a list of registered IP addresses, and issuing a infringement notice to each IP address. I’ll add to that two other approaches that I think are either insufficient, unethical, or illegal—or all three—yet have been bandied about as possible solutions.

  • Wiretapping: It has been suggested that network providers can perform deep-packet inspection (DPI) on their customer’s traffic in order to detect copyrighted content. This approach probably breaks a number of laws (either in the U.S. or elsewhere), creates a dangerous precedent and existing infrastructure for far-flung Internet surveillance, and yet is of dubious benefit given the move to encrypted communication by file-sharing software.
  • Spyware: By surreptitiously installing spyware/malware on end-hosts, one could scan a user’s local disk in order to detect the existence of potentially copyrighted material. This practice has even worse legal and ethical implications than network-level wiretapping, and yet politicians such as Senator Orrin Hatch (Utah) have gone as far as declaring that infringers’ computers should be destroyed. And it opens users up to the real danger that their computers or information could be misused by others; witness, for example, the security weaknesses of China’s Green Dam software.

So, if one starts from the position that copyrights are valid and should be enforceable—some dispute this—what would you like to see as best practices for copyright enforcement?

The approach taken by DRM is to try to build a technical framework that restricts users’ ability to share content or to consume it in a proscribed manner. But DRM has been largely disliked by end-users, mostly in the way it creates a poor user experience and interferes with expected rights (under fair-use doctrine). But DRM is a misleading argument, as copyright infringement notices are needed precisely after “unprotected” content has already flown the coop.

So I’ll start with two properties that I would want all enforcement agencies to take when issuing DMCA take-down notices. Let’s restrict this consideration to complaints about “whole” content (e.g., entire movies), as opposed to those DMCA challenges over sampled or remixed content, which is a legal debate.

  • For any end client suspected of file-sharing, one MUST verify that the client was actually uploading or downloading content, AND that the content corresponded to a valid portion of a copyrighted file. In BitTorrent, this might be that the client sends or receives a complete file block, and that the file block hashes to the correct value specified in the .torrent file.
  • When issuing a DMCA take-down notice, the request MUST be accompanied by logged information that shows (a) the client’s IP:port network address engaged in content transfer (e.g., a record of a TCP flow); (b) the actual application request/response that was acted upon (e.g., BitTorrent-level logs); and (c) that the transferred content corresponds to a valid file block (e.g., a BitTorrent hash).

So my question to the readers: What would you add to or remove from this list? With what other approaches do you think copyright enforcement should be performed or incentivized?