TorrentFreak recently noticed an interesting Florida case dealing with electronic copyright infringement. The case involves Malibu Media, which mostly makes porn, sued a number of BitTorrent users for illegally downloading their movies. Florida District Court Judge Ursula Ungaro ruled that simply producing an IP address did not constitute a sufficient evidence for a subpoena (where Malibu would ask the ISP to produce records regarding the user in question) because she felt the IP address did not sufficiently identify the user as the actual infringer.
Judge Ungaro’s reasoning is one espoused by technology experts for awhile: IP addresses do not necessarily identify that the accused as the infringer. Geo-location, in general, is an enormous problem when it comes to internet law. There are a few specific issues with IP addresses as a form of geo-location. First, the IP address may not originate from a residential address. Users potentially share the IP address from, say, a commercial network provided by a retailer. There are also other potential wrinkles with IP addresses, such as when the user utilizes a VPN or proxy to change their IP address. Second, a single IP address can encompass multiple users. If a household has a single network, it will possess one IP address in all likelihood. That IP address would just potentially indicate that the infringement originated from that household. It would not help determine the actual infringer. Finally, IP addresses can be altered, spoofed (where the user forges an IP address), or otherwise falsified. It is not unheard of, for example, for someone to log on to another user’s network and download files from there. If that user did so, then they would share an IP address with the network’s normal users.
To their credit, Malibu Media did go further than simply presenting an IP address. They claimed to use geo-location software to determine that the IP originated from a residential address. Judge Ungaro stated that, while welcome, these additional measures did nothing to indicate that the account holder with the listed IP address actually downloaded the file in question.
The question now becomes what happens when and if the case gets appealed. Malibu is infamous for suing lots of IP addresses connected to BitTorrent. This may be a sign that they wish to extract settlements rather than pursue serious cases, which would discourage them from appealing this case. Upholding a standard requiring more evidence than merely an IP address may also require courts to espouse a more definite standard for geo-location. Plaintiffs have long used IP addresses as the method of identifying defendants in file sharing cases. A higher standard for identifying defendants could serve as a very hard limit on the number of cases plaintiffs can file. There is also a very real possibility that, without some form of self-reporting (for example, listing a home town on Facebook), geo-location in file sharing cases is effectively impossible (or at least very difficult). It should be interesting to follow this case, should Malibu appeal.