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Archive for the ‘IP Address /= Defendant’ Category

Many things just happened in the Central District of California which no doubt will affect many (if not all of the Ingenuity 13 LLC cases, along with all of the Guava cases, and the AF Holdings LLC) cases. In short, California is no longer a troll-friendly place to sue defendants for copyright infringement.

Looking at Judge Otis Wright’s order yesterday in the Ingenuity 13 LLC v. John Doe (Case No. 2:12-cv-08333) case in the U.S. District Court for the Central District of California, we learn many new things about “the law of bittorrent use.” I’ll go over these in separate headers.

RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.

I’ve always dumbed copyright infringement down into two elements: 1) “Access” to the copyrighted file, and 2) “SUBSTANTIAL SIMILARITY” to the copyrighted work.

Here according to the judge, a plaintiff catching a downloader in the act of downloading a file is no evidence that the file was actually downloaded. According to yesterday’s ruling, even a downloader downloading a viewable portion (e.g., a few second snippet of a copyrighted video) would still NOT be guilty of copyright infringement until the amount of the file downloaded rises to a “substantial similarity” to the original copyrighted work. In traditional copyright law, this means that copyright infringement happens when the downloaded file becomes substantially a “copy” of the entire original work.

Us lawyers have been bouncing around ideas as to what we think a judge might rule constitutes copyright infringement with regard to internet downloading and bittorrent use, and so we have been playing with the possibility that maybe having a viewable portion of the file downloaded might be sufficient, but NO. Sticking to black-and-white copyright law, the “substantial similarity” element applies in copyright law to bittorrent downloads as well (at least now in California federal courts), and according to this ruling, a plaintiff needs to demonstrate that the entire copyrighted video (not a fragment, a snippet, or a snapshot) was downloaded. This would absolve roughly 99% of accused downloaders across the U.S. who started to download a file, decided not to complete the download, and who got sued anyway.

RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT

Here, all the evidence a copyright troll plaintiff has on a suspected defendant is that at a particular date and time (a “timestamp”), that particular IP address was engaged in the downloading of a particular copyrighted file.

Here, a “snapshot” of an IP address correlated with evidence from the subscriber’s internet service provider (“ISP”) [that it was the subscriber who was leased that IP address during the date and time the alleged activity took place] is insufficient proof that the download actually took place. The defendant could have merely entered the swarm and could be in queue to download his first byte of data. The defendant could be 10% done with the download and could have in his possession an unviewable fragment of the copyrighted video — hardly enough to rise to the level of “SUBSTANTIAL SIMILARITY” that is required in order to find a defendant guilty of copyright infringement. And, yet at the same time, that same snapshot could refer to a defendant having a download which is 99% complete.  A snapshot of an IP address in a bittorrent swarm is simply not conclusive that the downloader infringed the copyright.

The analogy the judge gives is taking a “snapshot” of a child reaching for a candy bar. In order to find someone guilty of copyright infringement, a plaintiff needs to prove that it is “more likely than not” that activity rising to the level of copyright infringement occurred. A snapshot places the defendant at the “scene of the crime.” It does not convict him for the unlawful act itself, and usually this is all the evidence a plaintiff copyright troll compiles when tracking a bittorrent swarm.

RULE 3. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST DO A “REASONABLE INVESTIGATION” TO DETERMINE THAT IT WAS THE NAMED DEFENDANT WHO DID THE DOWNLOAD, AND NOT SOMEONE ELSE WITH ACCESS TO HIS INTERNET CONNECTION.

We have known for a while that the Prenda Law Inc. model of naming defendants is 1) find out who lives in the household, 2) name the prepubescent male member of the family as the defendant. I am sad to say that the Malibu Media, LLC and the Lipscomb cases appear to be following the same trend with their exculpatory letter “scare” strategy.  I am very happy to see a judge object to this tactic.

I want to point out that EVERY LAWSUIT ACROSS THE U.S. where the copyright troll (plaintiff) has named the ISP subscriber as the defendant with no further investigation suffers from this same flaw. We have been saying for months that being an ISP subscriber (and coincidentally the one implicated as the defendant in these cases) does not mean that you were the one who did the download (nor were you responsible for all activities that took place on your internet connection).

The judge described steps a plaintiff could take to rule out the possibility that it was not someone other than the defendant who did the download. For example, the plaintiff could drive up to the defendant’s house and see if there is wireless access (to eliminate the defense that it was a neighbor); they could track multiple instances of downloading and correlate them with times and dates the defendant was home; etc. etc. etc.

There is so much more on this topic that I could discuss that in my opinion could kill every copyright troll lawsuit out there. In sum, merely citing that an IP address assigned to the alleged infringer was engaged in an unlawful act does not mean that it was the ISP subscriber (the one paying the bills) who was engaged in that unlawful act. Failing to take that extra step of “putting the ISP subscriber at the keyboard at the time of the download” (or offering evidence to prove that it was the ISP subscriber himself who did the download, and not a neighbor or someone else in his household) would be fatal to any lawsuit.

IN SUM, this was a great decision, and I look forward to it being adopted by federal courts across the country. But, before everyone starts calling and assuming that this is “the law,” I want to point out that in 99% of the states across the U.S., what exactly constitutes copyright infringement when it comes to internet downloading via peer-to-peer networks is still largely undefined.

As of yesterday, this order is now considered “the law” or more accurately “case law” which is binding in the California federal courts. However, as to the federal courts of other states, this ruling is merely “persuasive” (which effectively means “suggestive”). A judge of any other state can read this ruling and agree, or disagree. Obviously my hope is that judges in other states will read this opinion and adopt the ruling in their own cases, but it is not “the law” until 1) Congress passes a statute which the Senate ratifies, and the President signs it into law, or 2) judges in each state rule in accordance with this opinion, making this “case law” one state at a time.

For more on this topic, Sophisticated Jane Doe wrote a great write-up on this case in her “Judge Otis Wright is fed up with Brett Gibbs’ and Prenda’s frauds, hints at incarceration” article. Anyone associated with the AF Holdings, LLC cases (or any of the others filed by Prenda Law Inc. [or their new “Anti-Piracy Law Group” entity]) should take notice of this ruling, and should file in their own cases what is known as a “JUDICIAL NOTICE” informing each judge of this order.

Lastly, no doubt Brett Gibbs might be in some serious legal trouble, and he might even face jail time for his actions in these cases for fraud upon the court. But, I hope the court recognizes that Brett Gibbs (as destructive as he has been to thousands of families over the past 2+ years) is merely local counsel to the larger “Prenda Law Inc.” entity who is run by players such as John Steele and his partners in his former Steele|Hansmeier PLLC firm.

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I am very excited to see that judges are starting to get involved in the discussion of whether it is proper to sue tens, hundreds, or thousands of John Doe Defendants accused of downloading copyrighted films (usually pornographic in character, and using bittorrent to do so) in one lawsuit.

Just a few days ago, I wrote about Judge Beryl Howell’s opinion in D.C. where she ruled that joinder of any number of defendants in a bittorrent lawsuit is OKAY. Her reasoning centered around the fact that the defendants are unnamed, and [ignoring the mass extortion scheme that is causing many families to hand over their life’s savings to the copyright trolls] that it is more “convenient” for the court to manage one lawsuit with thousands of UNNAMED Doe Defendants rather than trying to manage thousands of lawsuits with one defendant in each lawsuit.

This evening, I read an article from Sophicticated Jane Doe’s “Fight Copyright Trolls” (kudos to Raul) entitled “Judge Marrero: Pornography may not be entitled to copyright protection.

Quite frankly, the article is not only one of the best articles I have read yet, but it teaches and describes the issues in a very methodical order and in a way that cannot be replicated in any blog post of mine, and for this reason, I highly suggest that you read 1) that article, and 2) the actual order (which is equally a good read for those interested in the topic).

My contribution is that although this order pre-dated Judge Howell’s order, it addressed the split not only in the Southern District of New York, but it also describes the issues surrounding bittorrent copyright infringement cases in which judges have been ruling inconsistently across the federal districts. It demonstrates that the issues are heating up, and that there is a need for consistent application of the joinder rules across the federal districts.

The funny part about this order is that whether or not joinder was proper in this case — “Next Phase Distribution, Inc. v. John Does 1-27” (Case No. 1:12-cv-03755-VM [or 12 Civ. 3755 for those New York attorneys who don’t like federal case law nomenclature], which is being heard by Judge Marrero in the U.S. District Court for the Southern District of New York) — the SDNY Judge Marrero decided to sever and dismiss John Does 2-27 for reasons INDEPENDENT OF THE JOINDER RULES. Read on.

Here are the three reasons [independent of joinder] which Judge Marrero used to sever and dismiss the defendants:

Reason one – “it would be impossible to manage the discovery of 27 different defendants.”

Imagine seizing 27 different sets of computers and dealing with 27 different sets of discovery, where each defendant held their own depositions, interrogetories, and where each defendant answered their complaint with potentially different and incompatible defenses (e.g., it wasn’t me, it was my son, it was my neighbor; I have an open wireless connection, my wifi was hacked, etc.). It would essentially be like holding 27 different trials in one trial. For this reason, the judge decided to sever and dismiss the defendants.

Reason two – “it is conceivable that several of the John Does did not actually download the copyrighted film.”

According to Mike Meier’s own admission, “roughly 30% of names turned over by ISPs are not those who actually shared or downloaded the videos.” Now while this statement can easily be taken out of context, it points to the reasonable doubt as to whether an accused infringer is actually the one who downloaded the copyrighted film. What made me stop and stare at the screen was that I was so excited that the judge explicitly stated that “an IP address does not necessarily correlate to a particular alleged infringer because several people may access the same IP address.”

There is more to this statement than the judge realizes, and while it has application to IP addresses changing and being used by multiple infringers (specifically regarding cases where the plaintiffs track THE IP ADDRESS regardless of whether it was issued to the subscriber at the time the downloads happened), in this case, it has the simple application that the subscriber is akin to the owner of a telephone landline account, and many people come in to use their phone — the account holder is not the one that makes each and every call, and for this reason, the account holder cannot be held liable for something that someone else did on their account. Back to the case.

Reason three – “if the Motion Picture is considered obscene, it may not be eligible for copyright protection.”

I cannot state more clearly that as Raul described in his article, this certainly is a clear shot across the bow that I have been sensing in many cases for quite a while now – that pornographic films are obscene, and that they do not qualify for copyright protection.

All I could say about this is that a number of attorneys and I have discussed this issue, not in the context of whether a “cheating housewife,” a “babysitter,” or any genre is copyrightable in and of itself (see the topic of “Scènes à faire”), but in the context of simply whether an obscene film is copyrightable at all.  For a long time, it wasn’t.  Then NY and some states started to allow it, and now perhaps courts will start reconsidering the topic. For an interesting write-up on the topic, see here.

In short, judges are getting tired of these pornography lawsuits, and I am getting tired of judges granting early discovery to copyright trolls without restrictions.

For this reason, I am happy that judges are starting to smarten up, and hopefully they will all start taking my advise that if they are going to grant early discovery to the copyright trolls, 1) the contact information of the accused John Does should remain private to the copyright trolls — only the CITY AND STATE of each accused Doe Defendant should be provided; 2) if contact information is to be provided, that it be “in camera” meaning that the ISPs should produce the information NOT TO THE COPYRIGHT TROLLS, BUT TO THE COURTS (so that the extortion scheme where plaintiff attorneys scare defendants into settling), and 3) the information provided on each John Doe Defendant only be permitted to be used IN THE INSTANT CASE (and not in a subsequent case where the plaintiff attorney threatens that “unless you settle now, we will ‘name’ you in a lawsuit in your home state.”

Judge Forrest (and now Judge Marrero) has put one more spin on this which is commendable — that the identity of the accused Doe Defendant be kept anonymous on the court’s docket. While this is admirable, it is not enough because defendants don’t only settle out of embarassment for being associated with a pornography case — they settle because it is cheaper to pay the plaintiff attorneys off than it is to fight them. This is a sad and broken part of the legal system, and putting the protections I outlined above would stop the copyright trolls in their tracks and would make these cases go away once and for all.

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