Over the past two decades, online piracy has proven a massive challenge for the entertainment industries.
Some copyright holders have tried to go after individual pirates in court but, increasingly, third-party intermediaries are targeted as well.
There are several lawsuits pending in US courts where rightsholders accuse Internet providers of not doing enough to stop piracy. One of the main allegations is that ISPs fail to terminate accounts of repeat infringers in 'appropriate circumstances', as is required under the DMCA.
These lawsuits were pioneered by music companies that had some success on this front, including a $1 billion verdict against Cox. More recently a group of filmmakers adopted a similar strategy by suing several Internet providers, including WOW!.
Filmmakers sue WoW!
WOW! is being sued by a group of smaller movie companies, including Millennium Media and Voltage Pictures. They accuse the ISP of failing to terminate the accounts of subscribers who were repeatedly flagged for sharing copyrighted material. As such, they want to hold WOW! liable for these pirating activities, which could lead to millions of dollars in damages.
The ISP responded a few weeks ago with a motion to dismiss the case. Among other things, the company argued that an IP address is not sufficient to prove that subscribers downloaded any infringing material.
The filmmakers opposed the motion to dismiss in court yesterday. With regard to the IP address evidence, they point out that WOW!'s own terms of service points out that subscribers are fully responsible for how and by whom their account is used.
The full opposition includes a wide variety of other arguments as well, which the court has yet to decide over. Meanwhile, a new issue is brewing that could potentially put thousands of WOW! subscribers in the movie companies' crosshairs.
Disclosing Pirates' Personal Details
Both sides are preparing for the discovery process, which allows them to gather evidence from the counterparty if the case continues. Among other things, the filmmakers want WOW! to disclose the identities of the account holders whose IP addresses were repeatedly flagged as infringing.
WOW! does want to hand over the names of its subscribers, even if these are only used for this case. However, the filmmakers ask for more. They want to reserve the right to sue these pirating subscribers in separate lawsuits and propose adding the following line to the protective order:
"For the avoidance of doubt, the Plaintiffs are not limited from using subscriber information to pursue legal relief against certain subscribers," the proposed addition reads.
The disclosure of personal details in a lawsuit like this is not uncommon. Last year, Charter was ordered to do the same as part of its legal battle with several music companies. However, that disclosure order prohibited rightsholders from going after subscribers in separate lawsuits.
Few Other Options
The filmmakers don't want this limitation. They point out that WOW! leaves them with few other options, since the ISP refuses to terminate repeat infringers based on repeated copyright infringement notices.
"Since Defendant refuses to terminate the accounts of its customer that are pirating Plaintiffs' Works thousands of times in response to these Notices, Plaintiffs must preserve their opportunity to take actions to protect their valuable copyrights from the piracy of Defendant's customers," they inform the court.
The only other option the rightsholders have is to file "John Doe" lawsuits. However, the filmmakers point out that WOW! has criticized these legal efforts as well.
WOW! Objects
Responding to the dispute, WOW! argues that its subscribers should not be subjected to potential legal action through this lawsuit, where they are not listed as defendants.
"Plaintiffs should not be permitted to use information properly designated Confidential or Highly Confidential outside of this case, or specifically to file lawsuits against Defendant's customers," the ISP writes.
There is no reason to deviate from the custom rule that protected information can only be used for the present case, not for other lawsuits. And if the movie companies want to sue subscribers they can do so through John Doe lawsuits, WOW! notes.
"Plaintiffs' counsel has filed many John Doe lawsuits against alleged copyright infringers without first obtaining discovery from the defendant's internet service provider, so they cannot claim to have no other way to pursue their claims."
If the filmmakers want an exception to this rule they can file a separate request with the court instead of targeting thousands of subscribers in one go, the ISP adds.
Filmmakers Are Willing to Drop Their Request if…
Interestingly, the filmmakers point out that they are happy to drop the request. However, they'll only do that if WOW! agrees to terminate repeat infringers, which is the exact issue that started this case.
"Plaintiffs are willing to drop their request for this provision if Defendant will stipulate to an injunction to do what it claims it is already doing – terminate the accounts of its customers for which it receives multiple notices of infringement," they write.
The issue now rests with the court which is expected to decide on these matters in the weeks to come. The disclosure dispute will only come into play if WOW!'s motion to dismiss is denied, partially or as a whole.
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A copy of the filmmakers' opposition to the motion to dismiss is available here (pdf) and the joint motion for the entry of a protective order can be found here (pdf)
From: TF, for the latest news on copyright battles, piracy and more.
At TorrentFreak, we write about copyright issues on a daily basis. However, this week we find ourselves on the receiving end of an infringement claim. 
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