The good news about computers is that they make the sharing of information easier. The bad news about computers is that they make the illegal sharing of copyrighted information easier. The other bad news about computers is that they allow those illegally sharing this information to hide behind catchy screen names and IP addresses.
This was the problem facing VPR Internationale, a Canadian producer of adult entertainment content that had identified 1,017 “defendants,” who it alleged to have illegally distributed VPR’s copyrighted material. What makes this case unique is that while VPR could track the instances of illegal distribution, the names of the individual distributors was unknown; each being “known to Plaintiff only by an Internet Protocol address (hereinafter ‘IP address’), which is a number that is assigned to devices, such as computers, that are connected to the Internet.” Complaint, VPR Internationale, v. Does 1-1,017, No. 11-2068 (C.D. Ill, March 8, 2011).
After filing suit for copyright infringement and civil conspiracy, VPR asked the court to permit expedited discovery so it could subpoena the subscriber and location associated with each of the 1,017 IP addresses. The court denied the motion noting that until at least one defendant is served with process, the court lacked jurisdiction over anyone and saying that the court was concerned that the requested discovery was a “fishing expedition by means of a perversion of the purpose and intent” of the federal civil procedure rule covering class action cases.
Undaunted, VPR asked the District Court to reconsider its ruling, which the court declined to do, and then asked the District Court to certify the issue for an immediate appeal to the Seventh Circuit, which the court also declined to do.
In refusing to certify the appeal, Judge Harold A. Baker again noted that since none of the 1,017 potential adversaries had been identified, “[t]here is no adversarial process yet.” The Court went on to say that “VPR ignores the fact that IP subscribers are not necessarily copyright infringers” and recounted the story of a couple whose house was raided by federal agents after their neighbor used their unsecured IP address to download child pornography.
It should be noted that not all courts agree with the position taken by Judge Baker. In its Motion for Reconsideration, VPR noted nine cases from districts in the Seventh Circuit in which other judges had permitted plaintiffs to discover the names and locations associated with the “defendant” IP addresses.
VPR Internationale recently asked the Seventh Circuit Court of Appeals to issue a writ of mandamus requiring Judge Baker to reverse his rulings. While the Court of Appeals denied the petition, it remanded the case to Judge Baker and “encouraged” him to seek briefing on the propriety of letting this case proceed as a class action. Barring any relief in the district court, the court of appeals granted VPR Internationale leave to file a second mandamus petition.
At this juncture, however, VPR Internationale is facing the proverbial Catch-22: it needs the name of at least one defendant to start the adversarial process, but it needs the adversarial process to get that name.