You Aren’t Your IP Address

May 6, 2011 Robert Garson

A simple point that may have been obvious to everyone apart from lawyers has taken years and millions of dollars to sort out … that a person and an IP Address are not one and the same. Why has something so basic at its very core taken so long to be decided by the courts, as Judge Baker seemed to do with consummate ease in VPR Internationale v. Does 1-1017 (2:11-cv-02068-HAB –DGB) in Illinois.

The problem arises from the complete inability of copyright holders to penetrate the wall thrown up by IP Address technology. As such VPR sought to have to have an irrebuttable presumption established that if infringing content is downloaded via an IP-Address then the owner of that address is liable or guilty for infringement. Nonsensical at it’s core you might rightly think for it is analogous to many other areas of law where such a concept would not hold true. Just as drugs found within a home that a squatter occupies do not necessarily belong to the person on the lease, the IP address owner should be treated accordingly, especially where the ability to share an unsecured address is so simple to the modern user.

Over the last few years we have seen an upsurge in cyber bullying by copyright holders seeking to shakedown companies with the threat of §512(h) federal subpoenas in order to force then to disclose IP addresses. A prime proponent of this has been Zuffa LLC against and with regards to rebroadcasting UFC events.

There have been thousands of suits launched against individuals over the past couple of years and many have denounced the effort as simply a ploy to extort low settlement amounts from the IP Address holders. Such a concern has its merits as the individual is less likely to have the ability to expend monies against the larger corporate machine engaging in aggregate suits. Should other courts follow Judge Baker’s lead, copyright holders may have to look towards technological solutions to their problem rather than relying upon a flawed tenet of law.

The judge rightly pointed out that adopting such a lowest common denominator presumption of culpability has led to innocent people being branded as users of child pornography. All one needs to do is open up a laptop in a well-populated area and unsecured networks are a dime a dozen. Therefore the judge correctly declined to hold that presumptively any or all of the defendants were prima facie liable. A heightened area of caution was noted as the case concerned explicit adult titles of which there was a genuine danger of settlements arising out of embarrassment rather than on the merits.

If the copyright holders cannot show a jurisdictional basis the cases will fall at the first hurdle and subpoenas will not ensue. It will be interesting to see if the Bit-Torrent lawsuits will overcome judgments of this type, otherwise, it’s back to the drawing board.

As a side issue, if we were our IP-Address, we wonder who presumptively we would be? Maybe a great fan of Mickey Mouse Club House, Hannah Montana or Elmo. Alternatively, that might be one of our daughters or our summer associate … the jury is still out.

G & Sz