Under U.S. copyright law, Internet providers must terminate the accounts of repeat infringers “in appropriate circumstances.”
Many ISPs have been reluctant to take such drastic measures, which triggered a wave of copyright infringement lawsuits in recent years.
The driving force behind a series of these lawsuits is a group of independent film companies, including the makers of the movies The Hitman’s Wife’s Bodyguard, London Has Fallen, Rambo V, and Hellboy. Represented by attorney Kerry Culpepper they sued several Internet providers including RCN and Grande.
The movie companies claim that the providers haven’t done enough to stop subscribers from pirating on their networks. Instead of terminating the accounts of persistent pirates, the Internet providers looked away, the complaints alleged.
Reddit Users as Evidence
Earlier this year, the filmmakers turned to Reddit after they found public comments by site users that could help their case. As part of the RCN lawsuit, they identified several potentially relevant comments and requested a DMCA subpoena, ordering Reddit to identify the anonymous users.
The Redditors in question discussed issues such as RCN’s handling of copyright infringement emails. The filmmakers could use this information to their advantage, but only if they could obtain the identities of the commenters first.
Reddit was unhappy with the subpoena, characterizing it as overbroad and more akin to a fishing expedition than regular evidence gathering. Reddit only handed over the details of one user whose comment mentioned RCN, denying other ‘less relevant’ ones, while citing the users’ First Amendment right to anonymous speech.
The court eventually agreed with this defense, concluding that Redditors’ First Amendment right to anonymous speech outweighs the interest of rightsholders. According to U.S. District Court Magistrate Judge Laurel Beeler, the filmmakers have other options to obtain this type of information., including through RCN itself.
Filmmakers Subpoena Reddit Again
The court’s denial was a setback for the film companies, but they are not letting all Redditors off the hook. As part of their evidence gathering in the related Grande lawsuit, they filed a motion to compel Reddit to comply with a subpoena that again targets a group of anonymous users.
The comments in question are several years old and were posted by “robowiener”, “SquirtyBottoms”, “Aikidi”, “kelsoATX”, “xBROKEx”, and “Schadenfreude_Taco”. The Grande references appear in the images below.
The subpoena was filed in late April, a week before the court denied the previous motion to compel. On May 8th, Reddit responded, again refusing to hand over the requested information, citing the right to anonymous speech.
While this places the camps back in their previous positions, this time around the filmmakers believe they have a stronger case supporting their motion to compel.
Other Ways to Get Information Failed
In its objection, Reddit pointed out that the anonymous speech rights of its users shouldn’t be violated, as long as the filmmakers have other ways to obtain the information. This was also highlighted by the court as a reason to deny the earlier motion to compel.
Responding to this critique, the new motion mentions that the documents provided by Grande during discovery haven’t resulted in any usable documents that discuss the motivation of its subscribers to use its service for piracy.
Also, following an earlier legal procedure, the plaintiffs were able to contact several Grande subscribers whose IP-addresses were frequently showing up in piracy-related BitTorrent swarms. However, they don’t believe this will result in any “substantive response” that can be used as evidence.
“Plaintiffs have sent letters to most of the subscribers of the 118 IP addresses but have had limited success establishing dialogue with most of them due to time constraints and refusals to respond to Plaintiffs’ counsel’s communications,” the motion reads.
Directly and Materially Relevant
In the earlier dispute, the court found that most comments from the targeted Redditors were not directly and materially relevant to the underlying lawsuit. This was particularly true because they didn’t always mention which Internet provider they referred to.
In this case, the comments respond to “Grande” threads and repeatedly mention the ISP by name. As such, the filmmakers believe that the balance tips in their favor.
“[T]here is no question that the comments are referring to Defendant as they directly mention Defendant’s name and are comments to a thread discussing Defendant,” the motion to compel reads.
The filmmakers say the comments are relevant to the Grande lawsuit because they show that the ISP failed to implement a proper repeat infringer policy. In addition, the apparent lack of piracy repercussions acted as a draw to potential subscribers.
“Reddit commentators ‘Aikidi’; ‘kelsoATX’; ‘xBROKEx’; and ‘Schadenfreude_Taco’ make comments emphatically stating that they prefer Defendant because they can use Defendant’s service to pirate copyright protected content without any consequences.
“‘Schadenfreude_Taco’ admits to having ‘downloaded about 1tb…from torrents and uploaded just under 2tb…’. Aikido states that ‘I have torrented like a motherf*cker all over grande and never seen anything’,” the filing adds.
Adding to these arguments, the motion also highlights a 12-year-old comment from the user “xBROKEx”, who specifically mentions that they pirated the movie Expendables. This admission is valuable in itself, the filmmakers argue.
“Plaintiffs do not have any other reasonable way to prove that Defendant’s subscriber pirated Expendables because the data provider that provided the evidence did not track this film,” the motion reads.
The fact that this activity took place more than a decade ago may explain why it wasn’t tracked. In any case, it’s quite unique to see that comments on Reddit can come back to haunt people, even after all these years.
Whether the filmmakers will have their way has yet to be seen. It is ultimately up to the court to decide whether these arguments are sufficient to unmask the anonymous Redditors, or if their right to anonymous speech remains protected.
A copy of the motion to compel, filed at the U.S. District Court for the Northern District of California, is available here (pdf)
From: TF, for the latest news on copyright battles, piracy and more.