Catching Digital Pirates: The Witch Hunt of the 21st Century

Abstract

This article discusses how innocent people can become embroiled in lawsuits brought by copyright holders, often porn producers, ostensibly aimed at stopping piracy but which really seem intended to extract quick settlements. This trend of case filings occur where copyright owners have attempted to identify large quantities of unknown users of file sharing software that pirate the copyrighted works over the Internet. To do so, the copyright owners can accurately trace the digital pirate to the Internet Service Provider (“ISP”) used. However, when subpoenaed, the ISP is only able to supply subscriber information on the person or company that pays for a service account rather than the identity of the actual actor on the account. Copyright owners stop there and simply attempt to extract quick settlements from the owners of these service accounts without any further investigation. This article argues that the current standard in many jurisdictions for granting such subpoenas on ISPs is inadequate. Courts should not grant discovery requests upon commercial ISPs that infer that the commercial ISP subscriber is the actor on all Internet traffic for their account. Such discovery requests amount to a “witch hunt” in that as a result of plaintiff’s detection technology, some innocents will get “burned.”