Tag: Copyright Litigation

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Copyright Trolling in Chicago (17980 IP addresses and counting)

WBEZ ran a story on Thursday, based in part on my research first published in the Iowa Law Review. The story, Why Are So Many People In Northern Illinois Being Sued For Downloading Porn? by Miles Bryan is an excellent overview of a complicated topic.

Focus on Chicago

Although these John Doe lawsuits are a nation-wide phenomenon, Chicago (technically, the Northern District of Illinois) is the leading destination for what many people regard as ‘copyright trolling’. The Northern District of Illinois has accounted for roughly 15% of all copyright John Doe lawsuits nationwide since 2013.

The Northern District of Illinois covers 18 counties across the northern tier of Illinois, with a population of about nine million people. The Southern District of New York which encompasses New York City and the Southern District of California which includes Los Angeles are much larger in terms of population, yet the SDNY has only had 531 John Doe cases in the same period that Chicago has seen 1603. The Southern District of California has seen a mere 165.

Since 2010 (up until June 2016) lawyers in the greater Chicago area (technically the Northern District of Illinois) have filed over 1600 John Doe copyright cases (1603 at last count). This practice is now so common in Chicago that these suits outnumber regular copyright lawsuits by a ratio of more than 4 to 1 (there were 385 regular copyright suits in the same period.)

WBEZ’s Graph based on my data

Because of the way these suits are filed, one lawsuit can sweep in a large number of IP addresses. Based on court records, my conservative estimate of the number of IP addresses involved in one of these suits in the Northern District of Illinois since 2010 is 17,980. Not all of these cases involve pornography, but the vast majority do, 73% in the Northern District of Illinois.

In 2015 alone, Chicago court saw just 48 regular copyright lawsuits filed, and 395 John Doe copyright lawsuits.

John Doe copyright lawsuits accounted for 58% of all copyright cases filed in 2015

Across the entire country, John Doe copyright lawsuits have risen from just under 4% of all copyright filings in 2010 to more than 19% in 2011, 43% in 2012, 46% in 2013, 51% in 2014 and just under 58% in 2015.

One pornography company, Malibu Media accounted for 40% of all federal copyright cases filed in 2014 and 2015. However, data collected for the first four months of 2016 shows that Malibu Media’s influence is declining (it accounts for only a quarter of all federal copyright cases filed in 2016 so far) and that there may be fewer John Doe cases filed this year if current trends continue. Last year there were 2930 cases filed, so far this year there have been only 690. John Doe cases for the year to date account for only 39.5% of all federal copyright cases.

Why Chicago?

One of the questions that Miles asked me to think about is why this phenomenon is so prevalent in Chicago?

The first thing to note is that Chicago is not alone. New Jersey actually had more of these cases in 2015 and the Southern District of New York had only slightly less. The five leading federal districts for john doe copyright cases in 2015 were

  • New Jersey – 386
  • Illinois (ND) – 395
  • New York (SD) – 248
  • Maryland – 194
  • Virginia (ED) – 153

But the Chicago cases involved many more IP addresses (almost 10 times as many!) and thus effected many more people.

Part of the answer to the question of why Chicago is that Chicago is large metro area with a lot of potential targets, so the economies of scale make it attractive to set up shop here. But that does not fully explain it. I think that another import part of the story is that judges in Chicago have not been as hostile to these suits as some judges in New York and Los Angeles.

Judges in the Northern District of Illinois are not exactly thrilled about john doe litigation, however, they has not closed the door to this kind of litigation and they are more tolerant of joining large numbers of IP addresses in a single lawsuit.

Related Publications:

Matthew Sag, IP Litigation in US District Courts: 1994 to 2014, 101 Iowa Law Review 1065-1112 (2016) (download from ssrn) Data updated for 2015  (http://ssrn.com/abstract=2711326)

Matthew Sag, Copyright Trolling, An Empirical Study, 100 Iowa Law Review 1105-1146 (2015) (download from ssrn)

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Some thoughts on Malibu Media’s recent loss and its implications

(Malibu Media LLC v. Doe, Docket No. 1:13-cv-06312 (N.D. Ill. Sept 04, 2013)

Malibu Media’s case against yet another John Doe defendant was tossed out of court on February 8th by United States Magistrate Judge Geraldine Soat Brown.

Malibu v. Doe, Memorandum, Opinion and Order of Feb 8, 2016 

The defendant in this case prevailed in summary judgement because Malibu was unable to establish that he had ever used Bittorrent or that it’s films had ended up on his hard drive. Malibu had been relying on experts from its technology vendor, but it failed to follow the rules with respect to follow the rules on disclosure of expert witnesses. (See, Fed. R. Civ. P. 26(a)(2)). Malibu also tried to add vital paragraphs containing new opinions to another witness’ original declaration in a manner not permitted by the Federal Rules of Civil Procedure.

On the surface, the loss does not appear to have broad implications for Malibu Media’s campaign against illegal file sharing; after all, it should not be too hard to avoid these particular procedural slip-ups in the future.

Maybe, maybe not?

Malibu is engaged in a litigation campaign of  unprecedented scope — last year Malibu Media alone was responsible for 39% of all copyright litigation in the US. (See  Matthew Sag, IP Litigation in United States District Courts—2015 Update (January 5, 2016). Available at SSRN: http://ssrn.com/abstract=2711326.)   John Doe litigation, by Malibu Media and others, made up almost 58% of the federal copyright docket (2930 cases out of 5076) in 2015. Malibu’s recent loss in the Northern District of Illinois illustrates, yet again, how ill suited federal court litigation is to resolving what should be relatively low stakes copyright disputes.

It is time for an entirely new forum to deal with the routine infringements that occur on BitTorrent and similar networks. The Copyright Office has suggested a small claims court for copyright but we probably need something far more targeted.

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(2/4) 2015 Data on Copyright Litigation in the US

2015 Update

This is the second  in a series of posts discussing the 2015 Update to the data in my forthcoming article, IP Litigation in United States District Courts: 1994 to 2014 (Iowa Law Review, forthcoming 2016). You can read the 2015 Update in serial form in the posts that follow, or you can download the entire update as a pdf file from ssrn.com. See Suggested citation, Matthew Sag, IP Litigation in United States District Courts—2015 Update (January 5, 2016). Available at SSRN: http://ssrn.com/abstract=2711326.

The previous post discussed the overall state of copyright, patent and trademark litigation, this post addresses the new data on copyright litigation and the John Doe phenomenon.

2. Copyright Litigation and the John Doe Phenomenon

Figure 2 (above), shows how the dramatic increase in copyright litigation from 2010 to 2015 is almost exclusively attributable to litigation against anonymous Internet file sharers. The figure shows the number of copyright cases including (dashed red line) and excluding (solid red line) cases filed against John Doe defendants. As discussed in Copyright Trolling, An Empirical Study, and IP Litigation in United States District Courts: 1994 to 2014, the rise of Internet filesharing has transformed copyright litigation in the United States. Federal district courts are currently inundated with copyright owner lawsuits against “John Doe” or “unknown” or otherwise unidentified defendants. Figure 3 (below) tracks the occurrence of these John Doe lawsuits from 1994 through 2015. These John Doe lawsuits are almost exclusively related to allegations of illegal filesharing, which explains why they were virtually non-existent prior to 2004.

Figure 3: Copyright Cases Filed in U.S. District Courts (1994—2015)

Figure 3

Source: Administrative Office of the U.S. Courts, PACER records, 1994—2015.

John Doe litigation has not been a static phenomenon. The current era of BitTorrent monetization began in 2010 with a handful of cases filed against large numbers—sometimes more than 5000—IP addresses. Filing suits in this way enabled plaintiffs to economize on filing fees but courts have become significantly more skeptical of the legality and desirability of mass joinder in BitTorrent cases. Based on the data from 2015, it seems that the era of mass joinder is almost completely over. As seen in Table 2 (below), in 2010 the average number of John Doe defendants per suit was over 560; by 2014 it was just over 3 and in 2015 it was barely over 2. As Table 2 also shows, although pornography still dominates John Doe litigation, the phenomenon is becoming increasingly mainstream.

Table 2 John Doe Copyright Cases 2010—2015

Screen Shot 2016-01-05 at 11.03.14 AM

John Doe and pornography cases identified by the author. In 2015 John Doe litigation made up almost 58% of the federal copyright docket (2930 cases out of 5076). One of the most interesting aspects of this phenomenon is that it is driven by such a small number of plaintiffs and— based on my random sampling of the underlying complaints—an even smaller number of lawyers.

Table 3 shows the five most prolific John Doe litigants for each year from 2011 to 2015. In 2015 Malibu Media was still the most significant individual copyright plaintiff in the US; in fact, it filed more suits than ever last year. However, Malibu Media accounted for a smaller percentage of copyright lawsuits in 2015 because other plaintiffs also ramped up their efforts. Malibu Media accounted for 41.5% of all copyright suits in the US in 2014, and just over 39% in 2015. Malibu Media is represented by Michael Keith Lipscomb of Lipscomb, Eisenberg & Baker, PL. Lipscomb also represents two of the other plaintiffs on the top five list for last year—Manny Film and Plastic The Movie Limited—as well as two of the top five from 2014—Good Man Productions, Inc. and Poplar Oaks, Inc. The filing fee for opening civil action in US district courts is now $400, so that means that plaintiffs associated with Mr Lipscomb have paid at least $936,800 in filing fees over the last year. Given the scale of this enterprise it seems reasonable to infer that Lipscomb and his clients have found a way to effectively monetize online infringement.

Table 3 Top Five Copyright John Doe Plaintiffs 2011—2015

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