While an IP address can identify Internet subscribers, “this does not tell Plaintiff who illegally downloaded Plaintiff's works, or, therefore, who Plaintiff will name is the Defendant in this case,” lawyer Brett Gibbs told a California federal magistrate judge. “It could be the Subscriber, or another member of his household, or any number of other individuals who had direct access to Subscriber’s network.”
To figure out who actually shared the pornographic movie at the center of the case, lawyer Brett Gibbs of Steele Hansmeier LLC told the judge (PDF) he would need to search every computer in the subscriber's household.
The subscriber in question, a grandfather who is not named in court documents, didn’t take this suggestion well. He is representing himself, and when Gibbs called him on the phone to discuss the matter, the grandfather “told Plaintiff's attorney that he felt like destroying and/or disposing of his computer. When told by Plaintiff's counsel that such actions would violate the explicit instructions of Plaintiff's counsel and his ISP, and may even result in Court sanctions for spoliation, Subscriber indicated that he did not care… Plaintiff is concerned that he may in fact do something rash to attempt to escape liability in this case in the near future.”
Boy Racer
Mass filesharing lawsuits have been predicated on the idea that an IP address is all the information required to find out who shared a copyrighted file online (or, at least, that it is all the information required to find someone legally accountable for copyright infringement occurring over their Internet connection). In the last two years, tens of thousands of settlement letters have been sent to Internet subscribers across the country, demanding a few thousand dollars from them to make federal lawsuits go away.That happened in this case, Boy Racer v. Doe, in California’s Northern District. A judge refused to allow lawyers to investigate the initial set of 52 IP address in a single case; instead, they could investigate just one. After contacting the ISP in question, Gibbs had his subscriber, but a one-hour phone call with the man on August 18 apparently convinced him that the subscriber knew nothing about it.
So Gibbs went back to court to tell Judge Paul Singh Grewal that he needed to search every computer in the home. California lawyer Stewart Kellar was at this hearing, and he noted that Grewal was plainly irritated at the request.
Grewal asks, if the ISP subpoena info is insufficient, why did Boy Racer only ask for that? Judge Grewal thought it was made clear from the expedited discovery that the ISP info would be sufficient to allow this case to succeed and now I’m hearing that is not true…
Grewal is getting stern, says: now I’m hearing the early discovery is insufficient, now I’m hearing you need doc requests and interrogatories, that’s a whole lot more discovery than I was lead to believe, isn’t it? You can’t get this discovery without a court order correct? Gibbs admits that is correct…
Gibbs is asking to inspect the subscriber’s hardware and any systems in the household. Grewal asks: what if there are 5 computers in the residence that accessed the IPs? What if there are half a dozen smart phones? Grewal notes that in his house there are at least a dozen connective devices…
Grewal says if we allow this type of discovery in a case that hasn’t been severed, we’re looking at the search of potentially hundreds or thousands of devices without anyone yet being named.Looking through a defendant's hard drive is hardly unusual; Jammie Thomas-Rasset had to turn hers over to an RIAA investigator as part of her file-sharing lawsuit years ago. But the Boy Racer case is becoming yet another example of the limits of IP addresses—and an example of how all the parties involved increasingly recognize these limits.
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