[x-pubpol] Judge: An IP-Address Doesn’t Identify a Person

[Joly MacFie]

http://torrentfreak.com/judge-an-ip-address-doesnt-identify-a-person-120503/

Judge: An IP-Address Doesn’t Identify a Person (or BitTorrent Pirate)

A landmark ruling in one of the many mass-BitTorrent lawsuits in the US has
suffered a severe blow to a thus far lucrative business. Among other
things, New York Judge Gary Brown explains in great detail why an
IP-address is not sufficient evidence to identify copyright infringers.
According to the Judge this lack of specific evidence means that many
alleged BitTorrent pirates have been wrongfully accused by copyright
holders.

Mass-BitTorrent lawsuits have been dragging on for more than two years in
the US, involving more than a quarter million alleged downloaders.

The copyright holders who start these cases generally provide nothing more
than an IP-address as evidence. They then ask the courts to grant a
subpoena, allowing them to ask Internet providers for the personal details
of the alleged offenders.

The problem, however, is that the person listed as the account holder is
often not the person who downloaded the infringing material. Or put
differently; an IP-address is not a person.

Previous judges who handled BitTorrent cases have made
observations<http://torrentfreak.com/ip-address-not-a-person-bittorrent-case-judge-says-110503/>
along
these lines, but none have been as detailed as New York Magistrate Judge
Gary Brown was in a recent order.

In his recommendation order the Judge labels mass-BitTorrent lawsuits a
“waste of judicial resources.” For a variety of reasons he recommends other
judges to reject<http://fightcopyrighttrolls.com/2012/05/02/new-york-judge-blasts-trolls-practices-recommends-banning-mass-bittorent-lawsuits-in-the-district/>
similar
cases in the future.

One of the arguments discussed in detail is the copyright holders’ claim
that IP-addresses can identify the alleged infringers. According to Judge
Brown this claim is very weak.

“The assumption that the person who pays for Internet access at a given
location is the same individual who allegedly downloaded a single sexually
explicit film is tenuous, and one that has grown more so over time,” he
writes.

“An IP address provides only the location at which one of any number of
computer devices may be deployed, much like a telephone number can be used
for any number of telephones.”

“Thus, it is no more likely that the subscriber to an IP address carried
out a particular computer function – here the purported illegal downloading
of a single pornographic film – than to say an individual who pays the
telephone bill made a specific telephone call.”

The Judge continues by arguing that having an IP-address as evidence is
even weaker than a telephone number, as the majority of US homes have a
wireless network nowadays. This means that many people, including complete
strangers if one has an open network, can use the same IP-address
simultaneously.

“While a decade ago, home wireless networks were nearly non-existent, 61%
of US homes now have wireless access. As a result, a single IP address
usually supports multiple computer devices – which unlike traditional
telephones can be operated simultaneously by different individuals,” Judge
Brown writes.

“Different family members, or even visitors, could have performed the
alleged downloads. Unless the wireless router has been appropriately
secured (and in some cases, even if it has been secured), neighbors or
passersby could access the Internet using the IP address assigned to a
particular subscriber and download the plaintiff’s film.”

Judge Brown explains that the widespread use of wireless networks makes a
significant difference in cases against file-sharers. He refers to an old
RIAA case of nearly a decade ago where the alleged infringer was located at
a University, on a wired connection offering hundreds to tracks in a shared
folder. The Judge points out that nowadays it is much harder to pinpoint
specific infringers.

Brown also cites various other judges who’ve made comments on the
IP-address issue. In*SBO Pictures, Inc. v. Does 1-3036* for example, the
court noted:

*“By defining Doe Defendants as ISP subscribers who were assigned certain
IP addresses, instead of the actual Internet users who allegedly engaged in
infringing activity, Plaintiff’s sought-after discovery has the potential
to draw numerous innocent internet users into the litigation, placing a
burden upon them that weighs against allowing the discovery as designed.”*

Judge Brown concludes that in these and other mass-BitTorrent lawsuits it
is simply unknown whether the person linked to the IP-address has anything
to do with the alleged copyright infringements.

“Although the complaints state that IP addresses are assigned to ‘devices’
and thus by discovering the individual associated with that IP address will
reveal ‘defendants’ true identity,’ this is unlikely to be the case,” he
concludes.

In other words, the copyright holders in these cases have wrongfully
accused dozens, hundreds, and sometimes thousands of people.

Aside from effectively shutting down all mass-BitTorrent lawsuits in the
Eastern District of New York, the order is a great reference for other
judges dealing with similar cases. Suing BitTorrent users is fine,
especially one at a time, but with proper evidence and not by abusing and
misleading the courts.

Court documents: http://www.scribd.com/embeds/92215098/content


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