Catch Me If You Can: BitTorrent Downloaders Put the “Hurt” on Hollywood
“The evidence has been falsified. It’s impossible. I never broke the law. I am the law!” Judge Dredd (Hollywood Pictures, 1995).
2011 was a depressing year for Hollywood in a number of ways. Movies are more expensive to make and market than ever. High-quality home theater systems, stocked with the latest high-definition television, Blu-Ray players, and surround sound, are readily affordable, giving viewers an easy excuse to skip out on the cost and hassle of going to a theater. Digital piracy is at an all-time high, thanks to BitTorrent users from all over the world. The cracks in Hollywood’s armor are beginning to show. Ticket sales were down 4.7 percent for 2011 to $10.1 billion. Ray Subers, Sequels, 3D Can’t Save 2011, Box Office Mojo, www.boxofficemojo.com (Jan. 6, 2012). In the fourth quarter alone, ticket sales were down 26.5 percent from 2010. Id. Even with a release calendar full of high-priced 3D and IMAX movies, Hollywood has not been able to stop the bleeding. 2011 had the smallest movie audience since 1995. Roger Ebert, I’ll tell you why movie revenue is dropping…, http://www.rogerebert.com/ (Dec. 28, 2011). And the outlook is about to get gloomier.
On December 23, 2011, Judge Beryl Howell of the U.S. District Court for the District of Columbia, effectively killed Voltage Pictures’ attempt to sue 24,583 people (yes, you read that right) who illegally downloaded its Oscar-winning film, The Hurt Locker. Jolie O’Dell, Judge kills lawsuit against Hurt Locker pirates, matey, MediaBeat, https://venturebeat.com/2011/12/23/yo-ho-ho/ (Dec. 23, 2011). By refusing to grant an extension to the trial when Voltage Pictures asked for more time to track down specific defendants from Internet service providers (ISPs), Judge Howell took what was supposed to be a landmark case against digital piracy and threw it out of court, thereby ending Voltage Pictures’ “costly experiment in mass litigation.” Jason Mick, Hurt Locker Lawsuit Fragged in Court, DailyTech, (Dec. 27, 2011). See Voltage Pictures, LLC v. Vazquez, No. 10-00873 (BAH), 2011 WL 5006942 (D.D.C. Oct. 20, 2011) (Vazquez I).
Voltage Pictures filed its complaint in the U.S. District Court in Washington, D.C. on May 24, 2010, seeking damages and an injunction against 5,000 unnamed individuals who allegedly used an anonymous file-sharing protocol called BitTorrent to illegally infringe Voltage Pictures’ copyright in The Hurt Locker. Voltage Pictures, LLC v. Does 1-5,000, No. 10-0873 (BAH), 2011 WL 1807438 (D.D.C. May 12, 2011). Before delving any deeper into this specific case, however, it may be helpful to briefly explain the nature of BitTorrent protocol and its use.
The BitTorrent protocol is distinguishable from traditional file transfers. BitTorrent is a decentralized Internet data distribution method that allows individual users to send data directly to one another without the use of a central hub computer. First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241, 244 (N.D.Ill. 2011). To download a movie, the individual user first locates a data file containing background information about the desired file and a list of trackers who, in turn, maintain a list of other users that are distributing the particular file. Id. The individual user then uses a BitTorrent client application to connect to the trackers listed in the data file. Id. Trackers then respond with lists of other individual users to whom the BitTorrent client application automatically connects and begins downloading data and distributing it to the other users. Id. Put another way, instead of downloading a file from one specific server (as was the case with Napster or is the case with iTunes), the individual user compiles his or her file from fragments or “bits” of the file taken from groups of hosts of that specific file.
The “decentralized character” of BitTorrent acts to insulate it from antipiracy measures and means that popular files can include “tens of thousands of unique individual users,” including users from across the country and around the world. 276 F.R.D. at 245. And yet, although almost all of the downloading and file sharing is done anonymously, individual users still have to transmit identifying information in the form of Internet Protocol (IP) addresses. Id. These IP addresses are associated with the users’ ISPs and Internet service accounts, which means they are also associated with account holders’ names and addresses. Id. Thus, an IP address can be traced to information leading to the identities of individual BitTorrent users. Id.
Subsequent to filing its complaint, Voltage Pictures secured several extensions of time to take discovery and to name and serve all of the putative defendants. It was also granted leave to subpoena ISPs in order to obtain identifying information for the putative defendants via their IP addresses. Does 1-5,000, supra, 2011 WL 1807438 at *2. On May 31, 2011, Voltage Pictures filed an amended complaint, increasing the list of defendants to 24,583 putative defendants and 12 named defendants. Vazquez I, supra, 2011 WL 5006942 at *1.
In the interim, the ISPs cooperated for the most part but were wary of angering paying customers and spending their own money to track down infringers. They provided identifying information in response to the subpoenas on a rolling basis. First Time Videos, supra, 2011 WL 1807438 at *1. But it was a slow process. For example, one of the major ISPs, Verizon, had only been providing Voltage Pictures with 100 IP address matches per month, which is not much considering there were 5,239 IPs sought by the subpoena. Matthew Humphries, 24,583 Hurt Locker pirates to be sued by Voltage Pictures, Geek.com (May 24, 2011).
Further delaying matters was the fact that before providing Voltage Pictures with a putative defendant’s identifying information, the ISPs would send notice to said defendants, informing them of their right to challenge the release of their identifying information. Does 1-5,000, supra, 2011 WL 1807438 at *1. Many of the putative defendants tried to quash the subpoenas issued to ISPs, asserting three basic arguments: (1) they did not engage in the alleged illegal conduct; (2) the subpoena required disclosure of privileged or other protected matter; and (3) the subpoenas subjected them to an undue burden. 2011 WL 1807438 at *2. The court rejected all three of these arguments and refused to quash the subpoenas, reasoning that although the putative defendants’ First Amendment right to anonymous speech was implicated, that right could not shield them from allegations of copyright infringement. 2011 WL 1807438 at *3. The court further reasoned that to deny Voltage Pictures “access to the information critical to bringing [the parties] properly into the lawsuit to address the merits of both the plaintiff’s claim and their defenses” would deprive Voltage Pictures of the opportunity to contest the merits and veracity of any defenses. 2011 WL 1807438 at *2.
The victory was short-lived, however. In October 2011, faced with the lackadaisical production from ISPs and the court’s impending deadlines, Voltage Pictures voluntarily dismissed three named defendants and 22,305 putative defendants whom it was having trouble tracking down. Voltage Pictures, LLC v. Vazquez, No. 10-00873 (BAH), 2011 WL 5006942 at *1 (D.D.C. Oct. 20, 2011) (Vazquez II). As a result, the biggest BitTorrent piracy lawsuit to date – and the “most sweeping antipiracy litigation since 2003,” when the Recording Industry Association of America (RIAA) began suing individuals for downloading music illegally to much backlash, chagrin, and, ultimately, abandonment (Greg Sandoval, Accused “Hurt Locker” pirates turn to law school, CNet, https://www.cnet.com/news/accused-hurt-locker-pirates-turn-to-law-school/ Nov. 1, 2010) – became a shell of its former self. 2,300 defendants remained, but even that drastically scaled-down number proved too much to handle.
After Voltage Pictures asked Judge Howell for another extension of time to track down the remaining putative defendants from ISPs, it proved one extension too many. Judge Howell denied the request and effectively ended the case. Jason Mick, Hurt Locker Lawsuit Fragged in Court, DailyTech, (Dec. 27, 2011). Although it may have been an independent effort by Voltage Pictures, litigated without the involvement of the Hollywood studios or their trade body, the impact on Hollywood is surely felt. If the litigation had worked, “it could have launched a new era of reverse class action claims, in which media corporations targeted thousands of members of the public for hundreds of millions in damages.” Id. Now, there is nothing to stop the BitTorrent users from continuing to download pirated movies.
Voltage Pictures, for its part, is not done fighting yet, and Illinois state courts could be affected. Although 22,304 putative defendants were voluntarily dismissed, the dismissal was without prejudice. The putative defendants could still be sued individually in their home states, and it is highly likely that many BitTorrent users reside in Illinois. Further, in the wake of defeat, Voltage Pictures is reportedly hoping to launch a number of smaller suits against individuals, with higher settlement targets. Id. Many of these cases could end up in Illinois. If that happens, Illinois courts will be forced to confront not just the judicial economy and administrative burden of managing such digital piracy cases, which are highly complicated and costly, but also the challenge that “broad-scale allegedly infringing activity represents for the copyright owners.” Does 1-5,000, supra, 2011 WL 1807438 at *8.
In the end, the cost may not be worth the benefit. After all, the RIAA spent $64 million litigating against illegal music downloads from 2006 to 2008 and only recovered a mere $1.4 million from pirates. Jason Mick, Hurt Locker Lawsuit Fragged in Court, DailyTech, (Dec. 27, 2011). If the Voltage Pictures case proves anything to Hollywood, it is that litigating against piracy is not going to be a healthy revenue stream. Suing BitTorrent users, to the extent they can be found, is not going to cure those box office blues. But cheer up! With The Dark Knight Rises, The Hobbit, and The Avengers on the slate for 2012, audiences are going to show up in droves. They just might be showing up online to download the movies instead.
