Judge: Botched Child Porn Raid Proves IP Address Not Proof of Crime

Judge: Botched Child Porn Raid Proves IP Address Not Proof of Crime

US District Judge Harold A. Baker says there is a very real “disconnect” between an accused IP subscriber and the actual infringer.

US District Judge Harold A. Baker has denied an ex parte motion by VPR Internationale, a Canada-based adult entertainment company, for expedited discovery in the case of 1,017 people it accuses of illegally downloading and sharing its copyrighted material.

VPR wants to immediately serve ISPs with subpoenas to determine the names and addresses associated with suspected IP addresses, but Judge Baker has rebuffed their request on the grounds that it’s likely that some aren’t infringers at all.

“In this case, not a single one of the plaintiff’s 1,017 potential adversaries has been

identified,” he writes in his ruling. “There is no adversarial process yet. Moreover, VPR ignores the fact that IP subscribers are not necessarily copyright infringers.”

Judge Baker cites the recent news of Fed agents raiding the home of a man suspected of downloading child pornography only to discover that the neighbor was the one responsible. The man had failed to properly secure a newly purchased wireless router and left his Internet connection open to illegal activity.

“The identity and location of the subscriber were provided by the ISP. The desktop computer, iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents returned the equipment after determining that no one at the home had downloaded the illegal material. Agents eventually traced the downloads to a neighbor who had used multiple IP subscribers’ Wi-Fi connections (including a secure connection from the State University of New York),” adds Judge Walker.

This means that some of the people accused by VPR could likewise be innocent targets, that there is a very real “disconnect” between the IP subscriber and the actual infringer.

“Where an IP address might actually identify an individual subscriber and address the correlation is still far from perfect, as illustrated in the MSNBC article,” writes Judge Walker. “The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”

More than anything, Judge Walker says that allowing VPR to identify the suspected IP addresses would unfairly prejudice the accused who’d likely be inclined to quickly settle the matter to avoid embarrassment rather than refute the charges against them.

“Could expedited discovery be used to wrest quick settlements, even from people who have done nothing wrong? The embarrassment of public exposure might be too great, the legal system too daunting and expensive, for some to ask whether VPR has competent evidence to prove its case,” says Judge Walker.

Where it gets really interesting is Judge Walker’s admonishment that until VPR can name “at least one” of infringers the court lacks personal jurisdiction “over any of the Does at this time.” Unless ISPs decided to willingly hand over the names of customer suspected of infringement it’s likely to be close to impossible for VPR to name many, if any, of the 1,017 Does.

Stay tuned.

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