Court Overrules Subscribers’ Objections in ISP Piracy Liability Lawsuit

Two years ago, a group of several film companies including the makers of Hellboy, Rambo V, The HItman’s Bodyguard, and Dallas Buyer’s Club, sued Internet provider Grande Communications.

The filmmakers accused the Astound-owned ISP of not doing enough to stop pirating subscribers. Specifically, they alleged that the company failed to terminate repeat infringers.

In addition to millions of dollars in potential damages, the plaintiffs also asked for strict anti-piracy measures. This includes a three-strikes termination policy against alleged pirates as well as an outright block of various pirate sites, including The Pirate Bay.

Motion to Dismiss Denied

Grande challenged the claims and filed a motion to dismiss the case. The ISP addressed the substance of the allegations and described the film companies and their anti-piracy partner Maverickeye as “copyright trolls”.

After reviewing the positions from both sides, the Texas federal court largely denied the motion to dismiss, noting that the filmmakers’ allegations are plausible enough for the case to continue. The requested pirate site-blocking injunction was dismissed, however, although it can be reintroduced at a later stage.

The order means that the case will continue and the parties will continue collecting evidence. This brings us to the next topic on the court’s agenda; a request from the filmmakers to release the identities of 125 Grande subscribers who were repeatedly flagged for sharing pirated films.

Subscribers Object

The identification request was submitted last year. The filmmakers say they have no intention of filing legal claims against the users, but the companies would like to contact them to learn more about Grande’s repeat infringer policy and other issues relevant to its claims.

A court order clarified that ‘all Protected Information provided by any party or nonparty…shall be used solely for the purpose of…trial…and for no other purpose…’

Despite these assurances, at least six subscribers filed official objections with the court. Nearly all of them denied having downloaded the pirated films and one subscriber said they had never received a copyright infringement complaint, contrary to the filmmakers’ claim.

Objections Overruled

After reviewing the subscribers’ objections, which were not shared with the filmmakers and the ISP, Magistrate Judge Dustin Howell decided to overrule them. This means that Grande must identify all 125 subscribers and share their personal details with the plaintiffs.

Judge Howell doesn’t refute the accuracy of the objections but concludes that the interests of the movie companies outweigh the privacy concerns of the subscribers. Specifically, the subscribers can provide important evidence to back up the filmmakers’ claims.

“The Court agrees with Plaintiffs that the subscriber information is relevant to the factual matters to be addressed in this case and that the burden imposed on the subscribers is not undue,” Judge Howell writes.

“Plaintiffs explain in their motion that the subscriber information will enable Plaintiffs to tie individual users to the allegedly infringing IP addresses and respond to Grande’s safe-harbor defense regarding the effectiveness of Grande’s notice procedure.”

The Neighbours?

Judge Howell further notes that it doesn’t matter whether the account holders pirated anything themselves. If a neighbor or friend used their connection to download something, the request for information would still be valid for the purpose of this lawsuit.

Finally, the court addresses privacy concerns. Judge Howell notes that the earlier mentioned protective order prevents the movie companies from using the subscribers’ details for anything unrelated to its case against Grande.

“[T]he Court’s order protecting the privacy of the subscribers’ information and limiting its use adequately addresses the objectors’ concerns about the burden imposed by disclosing their personal information for use in this case,” Judge Howell notes.

As mentioned earlier, there was one subscriber who objected by claiming that they never received a copyright infringement notice from Grande. The court overruled this objection as well, as the lack of notice is particularly relevant to the case at hand.

Whether the filmmakers will be able to obtain any useful information from the subscribers is unknown, but in the event that they do, details are likely to appear in the near future.

Instant update: The movie companies just submitted a request to unseal the subscribers’ objections (pdf), as these could prove to be useful too. This request only applies to the parties in this case, not the broader public.

“[T]he Court noted that in one objection […] the subscriber asserted not receiving notice from Defendant that its account had infringed copyrighted material. Accordingly, this and the other objections are relevant to proving Plaintiffs’ claims and rebutting Defendant’s assertion that it has implemented a repeat infringer policy.”

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A copy of the order overruling the subscribers’ objections, issued by Magistrate Judge Dustin Howell, is available here (pdf)