Overview
In two separate John Doe copyright cases, Judge Baer granted the plaintiffs' ex parte motions seeking leave to subpoena the Internet Service Provider ("ISP") of the unknown alleged copyright infringers. As we reported last week, judges in the Southern District have expressed concern over the tactics of the plaintiffs in a number of similar cases, all brought by adult film studios against individuals who allegedly shared their films over the BitTorrent file-sharing network. Citing recent opinions by Judge Nathan and Judge McMahon, Judge Baer wrote:
This Court shares in the growing concern over the unscrupulous tactics used by certain plaintiffs, particularly those from the adult films industry, to shake down the owners of specific IP addresses from which copyrighted adult films were allegedly downloaded.... There is a real risk that defendants might be falsely identified and forced to defend themselves against unwarranted allegations. In such cases, there is a risk not only of public embarrassment for the misidentified defendant, but also that the innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations. The risk of a shake-down is compounded when the claims involve allegations that a defendant downloaded and distributed sexually explicit material.Despite these concerns, Judge Baer allowed the plaintiffs in both cases to subpoena the defendants' ISPs. However, Judge Baer refused to allow the plaintiffs to seek the defendants' phone number or email address and stated that he would allow any defendant to proceed anonymously if he so chose. Judge Baer did not address the question -- addressed by Judge Scheindlin and Judge Furman in last week's orders -- of whether the John Doe defendants were properly joined together in the lawsuit, but for now the case continues with the defendants joined in one action.