By M.Christian
YNOT – A California judge has booted an adult company’s lawsuit against 90 alleged copyright infringers, saying he will not allow the judicial system to become party to what he evidently views as an extortion scheme perpetrated by an attorney who has “no desire to litigate.”
Judge Howard R. Lloyd pulled no punches in his ruling regarding Hard Drive Productions Inc. v. Does 1-90. In Lloyd’s opinion, court is not an appropriate venue for attorneys who use the discovery process to obtain personal information about alleged copyright infringers only so they may contact the defendants with an out-of-court offer to settle and avoid the embarrassment associated with porn consumption.
In his ruling, Lloyd noted the discovery process in online piracy cases is far from flawless. Internet service providers have only limited data about the IP addresses they oversee: Anyone with access to an account allegedly used to share copyrighted works may have violated the content owner’s rights. The person to whom the account is registered may not even be aware of the illicit activity.
In addition, Lloyd called the plaintiff’s lawyer’s actions in the case a fishing expedition, citing seven “fishing exercises.” The plaintiff evidently did itself little service when it admitted discovery actions in piracy cases usually don’t lead to continued litigation.
“It is abundantly clear that plaintiff’s requested discovery is not ‘very likely’ to reveal the identities of the Doe defendants,” the judge wrote in his ruling. “Indeed, plaintiff admitted at the hearing that neither it nor any other plaintiff it is aware of has ever served a single defendant in one of these cases where early discovery has been granted.”
Hard Drive further damaged its case by admitting the IP location technology it employed to identify allegedly infringing ISP accounts was “…only truly reliable when predicting the country in which an IP address is located.”
The judge also alerted on another, increasingly common, position about copyright suits: The plaintiff was unable to prove any of the 90 alleged downloaders shared the copyrighted material with each other or had any other contact. That, the judge noted, meant the Doe defendants couldn’t be grouped into one lawsuit; instead, each defendant would need to be sued separately.
In the end, Lloyd dismissed the plaintiff’s motion for discovery and released all but one defendant from the lawsuit.
“The court realizes that this decision may frustrate plaintiff and other copyright holders who, quite understandably, wish to curtail online infringement of their works,” the judge wrote. “Unfortunately, it would appear that the technology that enables copyright infringement has outpaced technology that prevents it.
“…[T]he court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net),” the ruling continued. “Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting ‘settlement’ payments from persons who may or may not be infringers. This the court is not willing to do.”
