Quite apart from the substantive legal issues in these types of cases, there are usually real problems in identifying the right defendants. IP addresses - which are the basis for the orders to identify subscribers - do not necessarily lead to potential infringers. There are countless reports of this information leading, instead, to dead grandmothers, well meaning or perhaps just non-tech savvy ordinary people who share their wi-fi access, and - of course - mostly to the bill paying parent(s) of ordinary families whose members include music fans and potential record company customers - such as the then 12 year old Brianna LaHara, who lived in subsidized housing in New York with her single mom and 9 year old brother and against whom "The music industry has turned its big legal guns."
Nearly 50,000 users of BitTorrent's peer-to-peer downloading software have been targeted in a sting over the past few months, accused of illegally downloading one of two movies.The Canadian BMG case was a world leader in establishing safeguards to ensure some accuracy in identification of potential defendants and to ensure that account holder information was not simply handed over en masse on demand. Without a safe firewall of protection and somebody to invoke it, there is a risk that Canadians will fall victim to American style litigation campaigns where it is easier to hand over a few thousand dollars than to retain counsel and fight - even when there is a complete defence. The $5,000 proposed limit in Bill C-32 was insufficient to stop such campaigns because $5,000 is still a lot of money for most Canadian families. However, it is more than enough to sustain mass production line US style litigation.
Voltage Pictures, the studio behind 2009's The Hurt Locker, is suing almost 25,000 BitTorrent users who allegedly illegally downloaded the flick. That came just weeks after 23,000 were sued for downloading The Expendables, produced by Nu Image.
Both of the lawsuits were filed in federal court in Washington, D.C., by the U.S. Copyright Group, an outfit formed by Washington-based law firm Dunlap, Grubb & Weaver. The group filed its Expendables lawsuit in February, then followed with its Hurt Locker lawsuit in April.
"They're copyright trolls," says Corynne McSherry, intellectual property director at the Electronic Frontier Foundation, a digital rights organization. "They take a dragnet approach to litigation."
The fact that this particular order was unopposed makes it unsurprising that it was issued. The adversarial system depends on the presence of adversaries. In this case, the potential defendants had no representation and were presumably unaware that their names were about to be divulged.
A recent dramatic development in the USA shows just how messy some mass litigation can become in that country.
According to Ars Technica, "A federal judge has fined Texas lawyer Evan Stone $10,000 for sending out subpoenas and then settlement letters to people accused of sharing a German porn film called Der Gute Onkel—all without the judge's permission. " Here's the ruling.
The Judge stated that:
To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed the Ad Litems to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the Court was taking too long to make a decision.10 All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions. (emphasis added).An interesting aspect of this ruling is that the Court appointed three attorneys ad litem (the “Ad Litems”) to represent the Does. The "chutzpadik" attorney was ordered to pay their costs in bringing the motion for sanctions.
The subpoena process is very different in the USA than in Canada, where it is mercifully much less susceptible to misuse or abuse.
However, it may be worth considering that Federal Courts Rule 52 allows a Federal Court judge to appoint a neutral "assessor" in certain types of situations to provide impartial expert advice to the Court. If no ISP or other entity is prepared to look out for the potential John and Jane Does in these types of situations, at least with respect to assessing the sufficiency of the evidence for the production order, this procedure may be worth considering.
Indeed, the late Gordon F. Henderson specifically recommended the use of "assessors" in appropriate circumstances in IP cases. Historically, they had been used mainly in admiralty cases, but there is no inherent reason why their use should be so limited. This is discussed at page 41 of his 1991 report entitled Intellectual Property Litigation, Legislation and Education. (I was privileged to have worked very closely with him on that prescient document).