23,000 Could be on the Hook for Downloading The Expendables

Jeffrey O’Brien is a JD candidate at the University of Alberta.

The United States District Court for The District of Columbia has granted leave to appeal to Avi Lerner’s production company, Nu Image. The studio is trying to sue 23,000 individuals for illegally downloading The Expendables. Surely they are not planning to enforce copyright against every single defendant, but a court ruling in the studio’s favour could send a message to those who illegally download movies and music.

In the current controversy over illegal downloads, the most notorious player is the Swedish-based torrenting website The Pirate Bay. Pirate Bay has a long list of legal problems which are outlined on their blog. Even if copyright holders do manage to get Pirate Bay shut down (the case is waiting for leave to appeal to the Supreme Court of Sweden), there is no reason for Pirate Bay’s users not to switch to BT Junkie or Torrent Box or one of the hundreds of other free download sites currently online. Pirate Bay is not the only website of its kind; it just happens to be today’s most popular free download site (Alexa ranks it the 91st most trafficked website in the world). When Napster was effectively shut down in 2001, media pirates started using Kazaa. Kazaa was later replaced by Limewire. Limewire is now defunct, and Pirate Bay filled the void.

In my view, shutting down free download sites is therefore not an effective means of stopping illegal downloads. Suing the users instead of the websites that facilitate piracy would be a better plan, if it could be done successfully. Unfortunately, Nu Image’s chances are not favourable. The strategy is not a new one; civil action against individual downloaders has been made at least as far back as 2003 without much success. Based on such precedent, one writer at The Guardian does not expect Nu Image to win the case. Also, the District Court of Illinois recently decided that an IP address is not enough to identify a defendant. If the court in D.C. agrees, it will be nearly impossible to identify the transgressors.

It is going to be hard for Nu Image to win the case, but the decision to launch the action is not surprising. In 2006, the RIAA reported that similar lawsuits against music downloaders had effectively slowed the practice of illegally downloading music. Casual downloaders are indifferent to the source of content as long as they get it, and they do not care if one of the many torrent websites gets fined or sued. A real threat of being punished personally would be a deterrent, so the filmmakers are trying to create that threat.