Under US copyright law, Internet service providers must terminate the accounts of repeat infringers "in appropriate circumstances."
Many ISPs have been reluctant to take such drastic measures, sparking a wave of copyright infringement lawsuits in recent years.
The driving force behind a number of these lawsuits is a group of independent film companies, including the makers of The Hitman's Wife's Bodyguard, London Has Fallen, Rambo V and Hellboy films. Represented by attorney Kerry Culpepper, they sued several Internet providers, including RCN and Big.
Movie companies say providers haven't done enough to prevent subscribers from hacking into their networks. Instead of terminating the accounts of persistent hackers, Internet providers looked the other way, the complaints alleged.
Reddit users as evidence
Earlier this year, filmmakers turned to reddit after finding public comments from site users that might help your case. As part of RCN's lawsuit, they identified several potentially relevant comments and requested a DMCA subpoena, ordering Reddit to identify the anonymous users.
The Redditors in question discussed topics such as RCN's handling of copyright infringement emails. The filmmakers could use this information to their advantage, but only if they could first obtain the identities of the commenters.
Reddit was not happy with the subpoena and characterized it as too wide and more like a fishing expedition than the usual gathering of evidence. Reddit only handed over the details of one user whose comment mentioned RCN, denying other "less relevant" ones, while citing users' First Amendment right to anonymous speech.
The court ultimately agreed with this defense, concluding that Redditors' First Amendment right to anonymous speech outweighs the interest of rights holders. According to US District Court Magistrate Judge Laurel Beeler, the filmmakers have other options to obtain this type of information, even through the RCN itself.
Filmmakers cite Reddit again
The court's denial was a setback for the film companies, but they're not releasing all Reddit users. As part of their collection of evidence in the Grande-related lawsuit, they filed a motion to compel Reddit to comply with a subpoena which again targets a group of anonymous users.
The comments in question are several years old and were posted by "robowiener", "SquirtyBottoms", "Aikidi", "kelsoATX", "xBROKEx", and "Schadenfreude_Taco". Grande's references appear in the following images.
The summons was filed in late April, a week before the court denied the earlier motion to compel. On May 8, Reddit responded, again refusing to provide the requested information, citing the right to anonymous expression.
While this puts the sides back in their previous positions, this time the filmmakers believe they have a stronger case supporting their motion to compel.
Other ways of obtaining information failed
In its objection, Reddit noted that its users' anonymous speech rights should not be violated, as long as filmmakers have other ways to obtain the information. This was also highlighted by the court as a reason to deny the earlier motion to compel.
In response to this criticism, the new motion mentions that the documents provided by Grande during the discovery have not resulted in any usable documents that discuss the motivation of its subscribers to use its service for hacking.
Likewise, following a previous judicial procedure, the plaintiffs we were able to contact several subscribers of Grande whose IP addresses frequently appeared in piracy-related BitTorrent swarms. However, they do not believe this will result in any "substantive answer" that can be used as evidence.
โThe plaintiffs have sent letters to most of the subscribers of the 118 IP addresses, but have had limited success in establishing a dialogue with most of them due to time constraints and refusals to respond to communications from the attorneys for the plaintiffs. plaintiffs,โ the motion says.
Directly and Materially Relevant
In the earlier dispute, the court found that most of the comments from the targeted Redditors were not directly and materially relevant to the underlying lawsuit. This was especially true because they did not always mention which Internet provider they were referring to.
In this case, the comments respond to โBigโ threads and repeatedly mention the ISP by name. As such, the filmmakers believe the scales are tipping in their favor.
โ[T]There is no doubt that the comments refer to Defendant, as they directly mention Defendant's name and are comments to a thread dealing with Defendant,โ the motion to compel says.
The filmmakers say the comments are relevant to Grande's lawsuit because they show the ISP failed to implement an adequate policy for repeat infringers. Additionally, the apparent lack of repercussions from the hacking acted as a lure for potential subscribers.
โReddit 'Aikidi' Commenters; 'kelsoATX'; 'xBROKEx'; and 'Schadenfreude_Taco' make comments emphatically stating that they prefer Defendant because they can use Defendant's service to hack copyrighted content without any consequences.
โ'Schadenfreude_Taco' admits to having 'downloaded about 1TB...of torrents and uploaded just under 2TB...'. Aikido claims that 'I've streamed like a son of a bitch all over big and never seen a thing,'โ the presentation adds.
Admission to piracy?
In addition to these arguments, the motion also highlights a 12-year-old comment from user โxBROKExโ, who specifically mentions that the Expendables movie was pirated. This admission is valuable in itself, the filmmakers argue.
"Plaintiffs have no other reasonable way to prove that Defendant's subscriber hacked Expendables because the data provider that provided the evidence did not track this film," the motion reads.
The fact that this activity took place over a decade ago may explain why it was not traced. In any case, it's pretty unique to see that comments on Reddit can come back to haunt people, even after all these years.
Whether the filmmakers will get away with it remains to be seen. Ultimately, it's up to the court to decide whether these arguments are enough to expose anonymous Redditors, or whether your right to anonymous expression remains protected.
โ
A copy of the motion to compel, filed in the US District Court for the Northern District of California, is available here (pdf)
