Wednesday, May 4, 2011

BitTorrent Users: Liberty Media Holding is Looking for You!

The decision last week by the federal court in Los Angeles highlights the potential liability for BitTorrent users who download copyrighted material. BitTorrent is a peer-to-peer file sharing protocol that allows the private transfer of files between private parties. Using BitTorrent, users can join a network “swarm” to simultaneously upload or download content with one another.

If the shared material is protected by copyright, trademark or other laws, then the copyright owner has a challenging problem in learning the identity of the BitTorrent swarm participants. Rights owners, taking a cue from the music industry infringement litigation, are seeking court orders requiring the production of names and contact information of customers of cable operators and Internet service providers who participate in these BitTorrent file sharing swarms.

In the Los Angeles case, Liberty Media Holdings (U.S. District Court for the Southern Dist. of Cal., Case No. 11cv619, order entered April 4, 2011) filed a lawsuit against unknown “Does” claiming that Liberty’s copyrighted motion picture, “Corbin Fisher Amateur College Men Down on the Farm,” (!), was the subject of infringing file sharing via a BitTorrent swarm. Liberty had the IP addresses of users actually participating in the claimed infringing conduct, but did not have the names and addresses of the owners of the IP addresses. After filing its lawsuit, Liberty requested that the court order various cable companies and ISPs, including Charter Communications, Comcast Cable, Cox Communications, Qwest Communications, Time Warner, Verizon, and numerous others, to provide to Liberty the identifying information of the owners of the IP addresses. Liberty was interested in obtaining this information for one important, and obvious, reason: it wanted to add these names to the lawsuit.

The court allowed Liberty to obtain this identifying information from the cable companies and ISPs. In doing so, the court observed that the Cable Privacy Act generally prohibits cable operators from disclosing personal identifying information about its customers absent a court order. The court concluded that it has authority to enter the order compelling the disclosure of customer identifying information when: (a) the plaintiff presents the unique IP addresses, the dates and times of the connection, and the names of the ISPs and cable operators that provide Internet access for these IP addresses, (b) the plaintiff had no other ability to identify the owners of the IP addresses, and (c) the plaintiff establishes its prima facie claim.

The court’s decision will now allow Liberty to obtain the identity of the claimed BitTorrent swarm infringers from the cable operators and ISPs. And once the identities are obtained, these BitTorrent users will likely receive notices of infringement and other claims from Liberty, perhaps in conjunction with an opportunity to pay a substantial sum of money in settlement!

This case should be a warning to all BitTorrent file sharers. Do not download or upload video and audio files that are protected by copyright, trademark or other laws. If you are uncertain whether the files are protected, look for a copyright notice, a trademark notice or other relevant information that may appear on the material. Importantly, be cautious in uploading or downloading material created by others. This material may very well be protected by IP laws and other laws.

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