Il prof. Eric Goldman dà notizia (e link al testo) di BODYGUARD PRODUCTIONS, INC., et al., Plaintiffs, v. RCN TELECOM SERVICES, LLC, et al., Defendants., Civ. A. No. 3:21-cv-15310 (GC) (TJB), emessa da US District Court, D. New Jersey.
October 11, 2022.
E’ decisione itneressante poichè vengono offerti (commendevolmente, come raramente da noi capita) precisazioni tecnico-informatiche
Ecco i fatti circa la piattaforma di scambio peer peer , con spiegazione tecnica accessibile:
Plaintiffs are the owners of copyrighted works (the “Works”), which are motion pictures listed in Exhibit A to the FAC. (FAC ¶ 50; FAC Ex. A, ECF No. 22-1.)[2] According to the FAC, Defendants operate as an Internet Service Provider (“ISP”) whose subscribers use “BitTorrent,” a peer-to-peer file-sharing protocol. (FAC ¶¶ 38, 56-71.) A BitTorrent user called an “initial seeder” installs BitTorrent’s software system, which is called the “BitTorrent Client,” on a local device to connect to and manage the BitTorrent file-sharing protocol. (Id. ¶ 62.) The initial seeder creates a “torrent” descriptor file using the BitTorrent Client. (Id.) The initial seeder then copies the motion pictures from legitimate sources (id. ¶ 63), and in the process “often modifies the file title of the Work[s],” or the Copyright Management Information (“CMI”) to include a reference to popular websites facilitating piracy, or “torrent sites,” such as YTS, Pirate Bay, or RARBG. (Id. ¶¶ 64, 72.) Including a reference to the torrent site “enhance[s] the reputation for the quality of [the] torrent files and attract[s] users to [these popular] piracy website[s].” (Id. ¶ 64.)
Next, the BitTorrent Client “takes the target computer file, the `initial seed,’ here the copyrighted [w]ork, and divides it into identically sized groups of bits known as `pieces[,]'” before assigning each piece “a random and unique alphanumeric identifier known as a `hash’ and record[ing] these hash identifiers in the torrent file.” (Id. ¶ 65-66.) Pieces of the computer file or copyrighted works are shared among peers using the BitTorrent protocol and BitTorrent Client that the peers installed on their computers. (Id. ¶¶ 75-81.) Once a peer has downloaded the entire file, the BitTorrent Client reassembles the pieces, and the peer is able to both view the movie, and act as an “additional seed” to further distribute the torrent file. (Id. ¶ 82.).
Poi il cenno al tipo di indagini condotte:
Plaintiffs engaged Maverickeye UG (“Maverickeye”), a third-party investigator, in order to “identify the IP addresses that [were] being used by those people that [were] using the BitTorrent protocol and the Internet to reproduce, distribute, display or perform Plaintiffs’ copyrighted Works.” (Id. ¶ 83.) “[Maverickeye] used forensic software to enable the scanning of peer-to-peer networks for the presence of infringing transactions.” (Id. ¶ 84.) Maverickeye then extracted and analyzed the data, and “logged information including the IP addresses, Unique Hash Numbers, and hit dates that show[ed] that Defendants’ subscribers distributed pieces of the copyrighted Works identified by the Unique Hash Number.” (Id. ¶¶ 85-86.) “Maverickeye’s agent viewed the Works side-by-side with the digital media file that correlates to the Unique Hash Number and determined that they were identical, strikingly similar or substantially similar.” (Id. ¶ 89.).
La corte ravvisa sia direct infringement, sia Contributory Infringement, che Vicarious Copyright Infringement.
Circa il primo, a parte il richiamo di precedenti USA (The Court finds that the facts in Cobbler, Park, and Peled are distinguishable from this case. In this case, unlike in Cobbler, Park, and Peled, Plaintiffs seek to impose liability against the ISP, via contributory and vicarious liability, and not an individual subscriber. Plaintiffs sufficiently allege that Defendants’ subscribers, or those using their accounts, employ Defendants’ internet service to copy and distribute the Works to which Plaintiffs hold legitimate copyrights, (FAC ¶¶ 56-71, 90-95.) The procedural posture in this case is more similar to Grande II, RCN I, and Cox, where the courts noted that the reasoning in Cobbler was inapplicable in suits brought against ISP defendants. See Grande II, 384 F. Supp. 3d at 767 n.6 (noting that the defendant’s reliance on Cobbler was misplaced as Cobbler involved an individual internet subscriber who took no affirmative steps to foster infringement whereas the ISP continued to provide internet service to customers despite knowledge of repeated infringement); RCN I, 2020 WL 5204067, at *10 n.5 (noting that Cobbler was inapposite as Cobbler involved an individual subscriber as opposed to the actual 1SP defendant in this case). Although the Park and Peled cases are from this district, those cases are likewise distinguishable as they involved claims asserted against individual subscribers and involved unopposed motions for default judgments filed against the subscribers who were proceeding pro se. See Peled, 2020 WL 831072, at *5-6; Park, 2019 WL 2960146, at *4) è interessante il richiamo alla clausole fatte firmare dalla piattaforma convenuta ai suoi utenti: .
<<Moreover, Plaintiffs advance facts that Defendants explicitly notified their subscribers in the IIA that accounts identified as infringing could be terminated, regardless of the identity of the infringing individual:
RCN reserves the right to disconnect and/or temporarily suspend an account from RCN’s service without warning if in RCN’s sole discretion there is a reasonable suspicion that such disconnection or suspension would prevent or interrupt a violation of applicable law, this Agreement, or RCN’s Online Policies.
Subject to the provision of the [DMCA] and any other applicable laws and regulations, RCN reserves the right to remove or block access to, either permanently or temporarily, any files which RCN suspects or which a third party alleges are associated with a violation of the law, this Agreement or RCN’s Online Policies or with the account responsible for such violation.
(FAC ¶ 134 (emphasis added).)
The fact that Defendants reserve the right to terminate the accounts of infringing subscribers suggests, at least at the early pleading stage, that Defendants do, in fact, contemplate responsibility over their accounts regardless of the individual accessing the account.
Therefore, Plaintiffs have plausibly pled direct infringement by Defendants’ subscribers>>.
Come sempre , riservarti il potere di far qualcosa, ti obbliga poi a farlo quando è necessario: non puoi più sottrarti.