Should ISPs Pay to Defend Innocent Users Caught Up in Whack-a-Mole?

Here’s another interesting Bit Torrent federal appellate case from Iowa (8th Circuit) Killer Joe Nevada v. Leaverton.  The California-based plaintiff (Killer Joe Nevada, LLC) appears to be a “collapsable” LLC organized to produce the movie “Killer Joe”.  The producers apparently fell victim to what fellow indie producer Ellen Seidler referred to as “DMCA hell” and went a-wandering online through the anonymous moles seeking the correct one to whack.

This California producer had to file “John Doe” lawsuits not only in the United States District Court, Northern District of Iowa, but also in the United States District Court, Eastern District of Tennessee, Southern District of Iowa Central Division, Southern District of Iowa Eastern Division, Southern District of Iowa Western Division, Northern District Georgia Atlanta Division, Northern and Southern Districts of Ohio, District of Colorado, and Northern District of Georgia Atlanta Division.

Forced to bear the cost of a scattershot “John Doe”-type investigation to find infringers on Bit Torrent (an application that is itself designed to obfuscate the identity of infringers), the producer eventually determined that Leaverton, one of the “John Doe” users, was not an infringer, so dismissed its case.  That “John Doe” user still tried to get the producer to bear her attorneys fees for the encounter.  (I find it hard to believe that this wasn’t done at the prompting of the ISP, but who knows.)

We can sympathize with the innocent defendant caught up in the whack a mole nightmare made necessary by ISPs who don’t take their repeat infringer policy seriously, but the cost of that complex “John Doe” process arguably designed further to insulate ISPs should not be borne by creators any more than it already is.  Both creators and users currently bear the cost of allowing the ISP to insulate itself through the “John Doe” process.

Although the issue was not before either the District Court or the Eighth Circuit,  this case raises the interesting policy question of whether the ISP should bear the burden of defending its users in exchange for the benefit of the “John Doe” procedure or indeed the entire DMCA whack a mole charade.

The Eighth Circuit gave the facts of the case on appeal:

Killer Joe Nevada owns the copyright to the 2012 motion picture “Killer Joe.” Killer Joe Nevada sued several “John Doe” defendants for copyright infringement, alleging each downloaded the film through a BitTorrent computer program.  In its complaint, Killer Joe Nevada identified each defendant only by Internet Protocol (IP) address. Killer Joe Nevada subpoenaed the respective Internet service providers (ISPs) to disclose the subscriber at each IP address. After Leaverton was identified, Killer Joe Nevada amended to make her a defendant. Leaverton answered, denied the allegations, and counterclaimed for a declaratory judgment that she had not infringed Killer Joe Nevada’s copyright.  After Leaverton denied downloading the film, Killer Joe Nevada moved to voluntarily dismiss its complaint with prejudice and to dismiss Leaverton’s counterclaim as moot. (emphasis mine)

So far, so good, right?  The whole “John Doe” lawsuit process is in place only because of a concern for the privacy of ISP users.  It’s cumbersome and it is almost guaranteed to be hit or miss–which means whatever the costs to the plaintiff of the users in the “miss” category are lost costs and wasted court resources.  But so be it, this is the current state of play until such time as Congress acts to fix it (attention Chairman Goodlatte).

Why are we reading this opinion then?  Seems like a good result, right?  Forced to deal with this tedious process, when the producer determined that the “John Doe” who turned out to be Leaverton was the wrong person, the producer voluntarily dismissed their case against Leaverton.

But wait, there’s more.

Leaverton opposed the voluntary dismissal unless it included [Leaverton’s] attorney’s fees. Specifically, she argued that attorney’s fees would deter Killer Joe Nevada and other plaintiffs from suing an IP-identified subscriber without investigating whether the subscriber herself had infringed the copyright. The district court granted Killer Joe Nevada’s motion to voluntarily dismiss its complaint, dismissed Leaverton’s counterclaim as moot, and denied the request for attorney’s fees. Leaverton appeals. (emphasis mine)

The Eighth Circuit rejected Leaverton’s claim for attorneys fees with this reasoning:

[A] plaintiff such as Killer Joe Nevada may properly sue “John Doe” to ascertain the ISP subscriber. See In re Charter Commc’ns Inc., Subpoena Enforcement Matter, 393 F.3d 771, 774, 775 n.3 (8th Cir. 2005) (“Only the ISP . . . can link a particular IP address with an individual’s name and physical address”; plaintiffs can seek “third-party discovery of the identity of the otherwise anonymous ‘John Doe’ defendant” from ISP). Leaverton cites no binding authority that a Copyright Act suit based on the infringer’s IP address is frivolous or unreasonable. The district court thus did not abuse its discretion by concluding that Killer Joe Nevada’s acts were reasonable.

In other words, this is the bed that ISPs wanted made and have forced their users to lie in.  In my view, if there’s anyone who should be covering Leaverton’s legal fees it should be her ISP.  It’s not Leaverton’s fault that the “John Doe” process is imprecise–arguably the reason it is imprecise is to create a disincentive for producers like Killer Joe from protecting their rights in order to insulate ISPs who are enjoying free rider profits from Bit Torrent users.  This is not exactly a secret.

Attorneys fees in these cases may be awarded at the discretion of the Court.  The defendant argued that the District Court should have awarded her attorneys fees, even though the producer essentially has its hands tied by the “John Doe” procedure.

Leaverton argues that the district court abused its discretion in determining that Killer Joe Nevada did not have improper motivations in bringing the lawsuit. The district court found that, because Killer Joe Nevada promptly dismissed its lawsuit once it learned Leaverton was not the infringer, Killer Joe Nevada had proper motives to sue the subscriber. The district court’s finding that Killer Joe Nevada lacked improper motivation was not an abuse of discretion.

Is this fair to the defendant?  It does feel as though she was caught up innocently and had to bear attorneys fees to defend herself from something she didn’t do–just like the producer.  Neither the producer nor the user sought to be caught up in the massive infringement game that is played every second of every day online.

But the ISP did.  Therefore, it seems only fair that the ISP take responsibility for defending its innocent users from the cost of these “John Doe” investigations.  This would be particularly true if the ISP also fails to implement a proper repeat infringer policy, thus increasing the likelihood of users getting caught up in these cases.

While we can all sympathize with the innocent user, the Killer Joe case puts those users one step closer to demanding their ISP treat them fairly and pay their defense costs in “John Doe” cases.