Trolls, Return To Your Bridges: IP Addresses Alone No Longer Sufficient To Identify Alleged Pirates

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bridge_trollBy IT-Lex Intern Joey Chindamo (LinkedIn)

In an emerging and consistent body of law, a California federal court has ruled that an IP address alone is not sufficient to establish identification of an alleged copyright infringer.

District Court Judge Barry Ted Moskowitz recently wrote the order in AF Holdings, LLC v. Rogers, [PDF] not long after another California court had decided that IP addresses are not synonymous with identification. See the U.S. District Court for the Central District of California’s similarly reasoned opinion in AF Holdings, LLC v. Doe [PDF].

We have talked about this issue before, and it centers on aggressive litigation spurred by the owners of pornographic videos that are shared on peer-to-peer file sharing networks. The groups who specialize in this type of work have become known to some adverse organizations as copyright trolls.

In Rogers, Chief Judge Moskowitz discussed the IP address issue and explained the problem with relying upon IP addresses for identification:

“[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, [plaintiff] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address 68.8.137.53. (The Court notes that it is actually unclear whether the IP address is registered to Defendant). As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity.”

The problem, as it does with many technology law issues, lies in the technology itself. Chief Judge Moskowitz quoted a case out of the U.S. District Court for the Eastern District of New York, In re Bittorrent Adult Film Copyright Infringement Cases [PDF].

“Several of the ISPs at issue in this case provide a complimentary wireless router as part of Internet service. As a result, a single IP address usually supports multiple computer devices—which unlike traditional telephones can be operated simultaneously by different individuals. . . 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.”

Consistently, the courts are holding that an IP address alone is not sufficient to establish identification of an infringer and it is clear to see why—both secure and unsecure networks are susceptible to infiltration, and once infiltrated, it is very difficult, if not impossible, to know exactly who is conducting what online activity. Imagine your neighbor hopping on to your unsecured wireless network and downloading illegal pornography. As In re Bittorrent pointed out:

“[I]t 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.”

Do these opinions put more ammunition in the hands of would-be infringers? Not necessarily. The opinions are carefully drafted to make clear that an IP address alone is insufficient to establish identification. But if a plaintiff copyright owner were to produce more evidence demonstrating the identification of the infringer, in addition to an IP address, a court may be more inclined to deny a motion to dismiss. 

In the age of rampant misuse of secured and unsecured networks, these opinions take steps to protect non-infringing internet users and increase the burden on copyright owners to prove who indeed infringed their work.

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