Monthly Archives: February 2014

May A Producer Of Adult Content Sue Users Who Jointly Download Using BitTorrent?

There have been a number of cases in which federal courts have been addressing the issue of peer to peer downloads of adult content. Most of the cases allege copyright infringement on a joint basis, i.e., that all the defendants who downloaded the content should be considered joint defendants.

This approach has been rejected by several federal judges. Most notably, Judge Faith Hochberg, U.S.D.J. addressed that issue in Amselfilm Productions GMBH v. SWARM 6A6DC (Fed. Dist. Ct., DNJ, October 10, 2012). She determined that the 187 defendants would not be joined because there was no appropriate showing that they were related in any manner. The mere fact that they all used the same peer to peer network was insufficient.

This trend was followed recently in Malibu Media v. John Does 1-19 (Fed. Dist. Ct., DNJ, 12-CV-6945, March 28, 2013) in a similar case involving the peer to peer network, BitTorrent. The Court determined that joinder of copyright causes of action against anonymous defendants was improper.

These cases generally take into account the fact that the defendants are downloading adult content. Therefore, the plaintiff’s threat to disclose their identities is frequently tantamount to extortion. In other words, they are more prone to settle to protect their identity rather because they believe that the cause of action against them is meritorious.