Internet Service Providers Forced to Hand Over Customer Names in Porn File-Sharing Lawsuit

Monday, April 9th 2012 by Joel Bronstein

The past week did not finish with a happy ending for internet service customers involved in the illegal use of pornographic videos.  In the U.S., District Court Judge Mary A. McLaughlin of the Eastern District of Pennsylvania ruled that internet service providers (“ISPs”) were required to disclose the names of subscribers accused of using a file-sharing site to copy a pornographic film.  Similarly in the U.K.,London’s High Court ordered O2, a U.K. broadband provider, to turn over both the names and addresses of over 9,000 customers accused of illegally downloading pornographic movies.

In Raw Films Ltd. v. John Does 1-15, Raw Films, a British adult film website, contended that 15 individuals in the Philadelphia area, identified only by their IP addresses, violated federal copyright law by reproducing the pornographic movie “Bareback Street Gang.”  Raw Films’ complaint alleges that the individuals used BitTorrent protocols, which works by having an initial user break down the original file into smaller pieces that are later reassembled when another user downloads the file, to reproduce the film.

Judge McLaughlin said that an internet users’ expectation of privacy does not apply to situations where the user is allegedly infringing on a party’s copyright.  Her opinion stated that “[c]ourts analyzing the expectation of privacy possessed by Internet users engaging in online file-sharing have concluded that such expectation is at most minimal because those individuals have already voluntarily given up certain information by engaging in that behavior…[and] a Doe defendant who has allegedly used the Internet to unlawfully download and disseminate copyrighted material does not have a significant expectation of privacy.”

“In both the United States and the United Kingdom, internet service providers have been ordered to release customer information of those accused of illegal downloading and file-sharing of pornographic videos.”

In ruling on the issue, Judge McLaughlin adopted a five-factor test to determine if the need to disclose outweighs the right to anonymity.  The factors are: (1) a prima facie claim of infringement, (2) the specificity of the information sought from the ISP, (3) a lack of alternative means of obtaining the information, (4) a “central need” for the information in order to bring the claim, and (5) the expectation of privacy held by the objecting party.  After balancing the five factors, Judge McLaughlin concluded that ISPs were required to hand over the names of their subscribers.

In the U.K. case, Golden Eye International, an adult film company, demanded that O2 release the personal information of those it accused of illegally downloading a number of the company’s films.  Ben Dover, the owner of the company as well as an actor, director, and producer of pornography, claims thatusers used peer-to-peer networks to download films such as “Booty Bandit” and “End Games.”

Judge Justice Arnold of the High Court ordered O2 to hand over the personal information, including the names and addresses, of 9,124 customers to Golden Eye.  While he did order O2 to turn over the subscriber’s personal details, Judge Arnold stopped Golden Eye from sending a proposed warning letter to the alleged downloaders demanding upwards of $1,100.

In the U.K. the legal precedent has now been set, which may lead to more cases involving the release of alleged file-sharers.  In the U.S., eighteen suits similar to Raw Films Ltd. have already been filed in more than a dozen district courts.

So beware illegal file-shares and downloaders of internet porn – your favorite companies are coming to get you.