Is An Ex-RIAA Lobbyist-Turned-Judge Sympathetic to Copyright Trolls?

copyright troll issuesIs an ex-RIAA lobbyist-turned-judge being too easy on a copyright troll?

Who Is This Pro-Copyright Troll Judge Of Which You Speak?

No stranger to the nuances of online copyright issues, Judge Beryl A. Howell has helped draft several significant Internet intellectual property regulations, including the CALEA, the No Electronic Theft Act (NET Act), the DMCA, in addition to the Digital Theft Deterrence and Copyright Damages Deterrence Acts. From there, Howell ostensibly sought greener pastures and hitched her wagon to the RIAA’s star, where she lobbied – nearly exclusively –  from 2004 to 2009. Now, Howell is a judge in Washington, D.C.

Why Did A Judge Wave Through A Copyright Troll Case?

Like the majority of copyright troll cases, this one involves an adult entertainment company – AF Holdings – that is looking to extract funds from 1,058 people who allegedly took part in peer-2-peer sharing of the movie “Popular Demand” – a p-rn flick copyrighted by Heartbreaker Digital LLC.

Sticking close to the “anatomy of a copyright troll” script, AF Holdings first gathered the IP addresses of a “torrent swarm” – a process that relies on imperfect software. Having only the numerical IPs, the group then subpoenaed the ISPs of each address. In response, the IPs argued it was improper to file a single John Doe lawsuit against more than a thousand people. Moreover, the Internet service provider pointed out that a fair percentage of the IPs on the subpoena list were outside the acting court’s jurisdiction, and shouldn’t be included in the lawsuit anyway.

Judge Howell, however, scoffed at the service provider’s arguments and concluded that “the ISPs’ objections to the plaintiff’s subpoenas have no merits.” In response to the question of jurisdiction, Howell reasoned:

“[A] [j]oinder at this stage in the proceedings is the single, most efficient mechanism available for the plaintiff to obtain information to identify those allegedly illegally downloading and distributing its movie. Severing the Doe defendants would essentially require the plaintiff to file 1,058 separate cases, pay separate filing fees, and obtain 1,058 separate subpoenas for each of the Listed IP Addresses. This burden for the plaintiff—not to mention the judicial system—would significantly frustrate the plaintiff’s efforts to identify and seek a remedy from those engaging in the alleged infringing activity.”

It’s unclear if Howell understands that some copyright trolls game the system by filing mass John Doe joinders to reduce court fees and extort citizens, who are sometimes innocent.

Howell also dismissed the ISPs’ assertion that AF Holdings should have used geolocation software to weed out defendants outside of the court’s jurisdiction. Her reasoning being that programs used to establish locality were only 95% accurate. She failed to acknowledge, however, that the software used to sniff out IP addresses – which is arguably the foundation of AF Holding’s case – is just as faulty as the geolocation programs.

The Problem With Torrent Swarms As Legal Proof

One of the oft-used arguments by defendants in copyright troll cases is that it’s impossible to tell if two IP addresses were participating in the same swarm at the same time. If it can be proved that any two of the IPs never participated in the same swarm group, then the joinder can, theoretically, be declared invalid, as the conspiratorial link between the defending parties cannot be demonstrated. Howell, however, rejects that notion. She reasons:

“Although some IP addresses listed in the Complaint are identified as infringing the plaintiff’s copyright four months apart, at this stage there is no basis to rebut the plaintiff’s claims that the Listed IP Addresses were, at least potentially, part of the same swarm and provided or shared pieces of the plaintiff’s copyrighted work.” “If the plaintiff chooses to proceed against those allegedly infringing its copyright after it obtains identifying information, the named defendants may be able to rebut these allegations.”

So basically, Howell is arguing that given the hitherto available information, it’s impossible to prove whether or not the listed IPs were joined in the same swarm at the same time, but there is enough evidence to demonstrate that all the IPs listed may have infringed in some manner. She goes on to say that defendants can raise objections and defenses once the lawsuit has been filed against them:

“Upon receipt of the identifying information sought in the subpoenas, the plaintiff is entitled to seek settlement with these individuals, or decide that pursuing a lawsuit against particular defendants is no longer feasible or cost-effective,” she wrote. “Either course selected by the plaintiff would give the copyright owner the opportunity to effectuate its statutorily protected rights and thereby serves our system of justice.”

Judge Beryl A. Howell’s decision comes at a time when it seemed judges were waking up to the extortive nature of copyright trolls. Interestingly, however, she authorized an immediate appeal.

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