Leonard J. French

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Pennsylvania Court to Test Online Piracy Claims

Judge Michael Baylson to hold trials in five cases of online copyright infringement

By Leonard J. French, Esq. – Posted: 9-October, 2012 – 20:57 EDT – Edited: 13-October, 2012 – 15:10 EDT

Around the country, individuals are being sued for online copyright infringement, also known as internet piracy. But the tactics used by the Plaintiffs' attorneys often result in innocent casualties. The accused often settle for hundreds or thousands of dollars – some of whom just want to protect their identities.

But with a recent decision out of the U.S. District Court for the Eastern District of Pennsylvania last Wednesday (October 3rd, 2012), these cases will be put to the test. In his order, Judge Michael Baylson selected five of the piracy defendants to proceed to an expedited trial, known as a Bellwether trial. These five cases are to be used to set the legal precedent for future claims of online piracy.

The test cases are a landmark decision in the United States. Almost all of these types of cases are dismissed or settled without reaching a trial on the merits. And many of those settlements are from defendants who simply can't afford to take a chance of being named in a public lawsuit over the illegal downloading of pornography.

But these five cases are to proceed or ". . . the Court may draw an inference that Plaintiff is not serious about proving its claims, or is unable to do so", says Judge Baylson. He's also provided a protective order to allow the five defendants to maintain their anonymity until he deems it appropriate to reveal their identities.

For those unfamiliar with these cases, I offer a short explanation: Plaintiffs hire a software firm to watch online file sharing using the Bittorrent protocol. This Peer-to-Peer (P2P) technology was originally intended to lighten the load on providers or hosts of large files by distributing small, more manageable pieces amongst interested parties who then share the pieces with each other to complete the download.

When used for the unauthorized sharing of music, movies, games, applications, books, and adult content, the Plaintiff's software firm pretends to be just another downloader but is silently logging the IP addresses of all of the participating parties.

Once the Plaintiffs feel they have enough data, they proceed to court, where they file a 'John Doe' complaint and request a Judge's approval for a subpoena to the Internet Providers (ISPs) for the account information behind the IP addresses the Plaintiffs logged.

After a required notice from the ISP, each account holder, now a defendant, has an opportunity to file court documents (motions) to attempt to dismiss the case or quash the subpoena.

High-tech attorneys like myself have been fighting these cases for some time. But after some unfavorable rulings earlier this year, the emboldened Plaintiffs began filing more cases, getting the attention of Judge Baylson and resulting in the ruling creating these Bellwether trials.

There are other internet piracy cases which are still proceeding in Pennsylvania Federal court. If you have received a notice or have been served with a lawsuit in one of these cases, you'll want to contact an attorney to be advised of your legal rights and potential liability in these cases.

Some additional resources: a PCWorld article and a fightcopyrighttrolls.com article on the Bellwether trials.

- Leonard J. French, Esq.

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