Posts Tagged ‘I got sued by a copyright troll’

I Got Sued By a Copyright Troll Part V: Judge Finds IP Address Does Not Identify Person

Monday, 07 May, 2012 06:00 Written by Aaron Thalwitzer 0 Comments
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The BitTorrent lawsuits (otherwise known as copyright troll lawsuits, often involving porn-related plaintiffs), have been smacked down again. I’ve spoken about these cases many times before, including the basics of pre-suit strategy, defenses both procedural and on the merits, and even the discovery shenanigans that go into such cases.

Those trolls just got smacked down. New York Judge Gary Brown spelled it out in a 26-page order dated May 1, 2011. I highly recommend reading the entire order. It’s a great read and provides an outline for other courts to deal with the onslaught of copyright troll litigation. Judge Brown recites some of the factual defenses presented by defendants:

The factual defenses presented are vastly different and highly individualized. One movant, John Doe #16 has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. John Doe #10 represents that downloading a copy of this film is contrary to her “religious, moral,ethical and personal views.” Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.

(internal citations omitted).

Judge Brown also found that since a single IP address could be used by many different computers, the trolls’ quest for names associated with IP addresses disingenuous:

An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones . . . Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function here the purported illegal downloading of a single pornographic film than to say an individual who pays the telephone bill made a specific telephone call.

Judge Brown notes that different members of the same household could additionally have performed the alleged downloads, as well as neighbors or passersby (if the wireless routers were unsecured). Citing a case from just a few months ago, the Court chastised counsel for their extortionist practices:

The Court is concerned about the possibility that many of the names and addresses produced in response to Plaintiff’s discovery request will not in fact be those of the individuals who downloaded “My Little Panties # 2.” The risk is not purely speculative; Plaintiff’s counsel estimated that 30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material. Counsel stated that the true offender is often the “teenaged son … or the boyfriend if it’s a lady.” Alternatively, the perpetrator might turn out to be a neighbor in an apartment building that uses shared IP addresses or a dormitory that uses shared wireless networks. This risk of false positives gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading “My Little Panties # 2.”
Digital Sin, Inc. v. Does 1-176, — F.R.D. –, 2012 WL 263491, at *3 (S.D.N.Y. Jan. 30, 2012).
Other courts have found that the litigation tactics indicate:
[T]hat the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.” Raw Films, 2011 WL 6182025, at *2.
The Judge sorted through the BS and found that all they trolls really wanted was a name, someone to threaten and extort and from whom they could make a few thousand dollars.

Judge Beach labels mass-BitTorrent lawsuits a “waste of judicial resources” and recommends that other judge do likewise. Lastly, Judge Beach also found that the “swarm” joinder of unnamed defendants violated Rule 20, further wasting judicial resources and improperly avoid paying filing fees.

The Court granted subpoenas to John Doe 1 only in each of the cases and recommended that each John Doe be filed as a separate lawsuit in the future. If the severance recommendation become the rule of law nationwide, we would likely see the end of this type of copyright troll. The filing fees aren’t worth it for them.

I Got Sued by a Copyright Troll, Part III: Beat ‘Em on the Merits

Monday, 19 December, 2011 05:23 Written by Aaron Thalwitzer 2 Comments
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Let’s beat this thing senseless. The Complaint you received says that you infringed on a copyright because you downloaded it through BitTorrent. Let us assume that you did not personally download infringing material, and that if someone else did it, you honestly had no idea. Let us also assume that infringing material was downloaded using your IP address. First, consider the possibilities.

Who else had access to your IP address? Obviously, anyone who used your computer. If your WiFi network is unsecured, anyone within a certain distance from your router. Also, anyone who has stolen your IP address (I don’t condone it, but it’s easily done). Most people don’t live alone, and most people share computers, or at least leave their computer unsecured and unattended some of the time. Your roommate, husband, wife, mother, father, child, or friend could have done it, and you would might never know. If you live near other people, they could have done it too! Also, as anyone with a smartphone knows, WiFi networks pop up everywhere when you’re driving around. It could have been someone in a moving car, or someone waiting to pick someone up in the road. The point is, there are a potentially unlimited number of suspects, many of them completely unknown to you.

But the demand letter probably says it doesn’t matter if someone else did it, you’re still on the hook! Why? Because f*#k you! The trolls want your money, and that’s that. Is that true? Not really. It takes a lot more than, “it happened, you’re liable, pay up.”

Specifically, contributory infringement requires:

  1. Actual knowledge of the specific infringing activity, and
  2. Intent, and
  3. Inducing, causing, or materially contributing to the infringing conduct of another.

It probably also requires that the “system operator” actually knew that specific infringing material is available, and that the sysop could have taken measures to stop such damage, but continued to provide such access.  See MGM v. Grokster, 545 U.S. 91, 930 (2005), and Perfect 10, Inc. v. Amazon.com, 508 F. 3d 1146 (9th Circuit, 2007). Each element must be proven, or the claim fails.

The troll could also try vicarious infringement, which requires:

  1. Profit from direct infringement, and
  2. A right (and ability) to stop or limit the infringement.

Someone else downloaded porn, and you profited from it? Not likely. And who had the right or ability to stop anyone and everyone from using for WiFi? Short of unplugging the whole thing, it seems unlikely that you could stop such activity. I can’t even stop my 3 year old from using my computer. My wife? I certainly don’t have the ability, and I know I don’t have the right. It wouldn’t be a bad idea to secure your networks though, and for businesses to adopt policies forbidding such activities (though illegal activities are probably impliedly forbidden anyway).

We’re assuming that you’re basically an innocent here, but that unbeknownst to you, someone else used your IP to download some copyrighted porn. Unless you stupidly and carelessly admit knowledge of that actual downloading of material and that you did nothing to stop it, how the heck could they prove all those elements? It’s tough to imagine. That’s why prosecutors so rarely touch these cases. They’re a waste of time if the accused is willing and able to put up a strong defense. The trolls are trying to cast a wide net and snag a few unlucky souls willing to throw money at a problem. The meme, “Don’t feed the trolls” is appropriate, but I prefer to say, “Never give up, never surrender!”

I Got Sued by a Copyright Troll, Part II: No Joinder for You!

Monday, 12 December, 2011 05:48 Written by Aaron Thalwitzer 2 Comments
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Last week we discussed options when a copyright troll sues you. Specifically, when a hardcore gay porn troll sues you. Now, I’m assuming you’ve decided to do the honorable thing, fight back!

In the law, there are two ways to win most cases: (1) on the merits, and (2) on a “technicality”.

Winning on the merits means the finder of fact (the judge or jury) found, applying the law to your facts, that your actual case was more meritorious than your opponent’s case. Winning on a technicality means that you won without addressing some or all of the facts of the case — usually based on a rule of procedure. You can beat a copyright troll like the one described in Part I on the merits and on technicalities. Winning based on a rule of procedure is usually better for the client because: (1) it’s quicker and therefore cheaper, (2) there’s less risk of losing since the a decision based upon the merits is usually the last resort, and (3) the facts, and therefore, the client, are potentially less public. There’s nothing quite like the feeling of defeating your adversary in a full-fledged trial, but each day in court costs thousands of dollars, and you’re putting your hopes in the hands of 1 judge or 6 strangers. So . . . let’s try to win on a technicality, if we can.

First, copyright trolls add dozens or even tens of thousands of defendants for one reason. It’s cheaper. Filing fees in the Circuit Courts of Florida average about $300.00, so each defendant they join to a single case is savings. Since trolls often rely upon form pleadings, they can also, literally, file one document with the clerk instead of one per defendant. Again, big savings. But, we can turn their cheapness into a big advantage. In any case, there must be a reason to sue multiple defendants at the same time. Let’s examine the similarities alleged in these cases:

  • Same plaintiff (e.g. Boy Racer)
  • Same cause of action (Copyright Infringement)
  • Allegations that the same work was downloaded by each defendant
  • Allegations that BitTorrent was used by each defendant

So, there are similarities between the defendants. But it’s not enough. Not even close. Let’s analogize to tangible theft, say, from Wal-Mart. Countless shoplifters are caught pilfering from Wal-Mart each year. Wal-Mart would love to have a reputation for “prosecuting shoplifters to the fullest extent of the law”. Simple economics make this a difficult proposition. Filing fees, attorney’s fees, and the internal staff required to administer thousands upon thousands of lawsuits would cost ungodly sums. For items that cost from a few dollars to even a few hundred dollars, it’s impossible to justify. A demand letter is all you’re likely to see (criminal prosecution aside — but taxpayers, not Wal-Mart, foots that bill), because those letters can be generated en masse for little more than the cost of postage. But, what if Wal-Mart sued all shoplifters in each state once a year, in one (fifty, actually) giant lawsuit? One filing fee, combined damages that are actually worth litigating over, and Wal-Mart gets a reputation for being tough on shoplifting. If this practice were legal, surely, Wal-Mart, a company as familiar with the benefits of scaling up as anybody, would have figured this out long ago. But, it’s against the rules.

A troll was recently chastised practice before dismissal for improper joinder:

[I]f the 300 unnamed defendants have in fact infringed any copyright . . . each of those infringements was separate and apart from the others. No predicate has been shown for thus combining 300 separate actions on the cheap — if [Plaintiff] had sued 300 claimed infringers separately for their discrete infringements, the filing fees alone would have aggregated $105,000 rather than $350.

See CP Productions, Inc. v. Does 1-300, case 1:2010cv06255 (N. Dist. Cal.).

After one of the defendants’ motions to quash was granted, other defendants continued to file motions to quash. The judge order Plaintiff’s counsel to appear in court to discuss how to inform all the “Doe” defendants that “they will not be subject to any further trouble or expense as a result of this ill-fated (as well as ill-considered) lawsuit. Id.

Plaintiffs relied on Rule 20, which allows permissive joinder of claims by plaintiffs or against defendants if the claims “aris[e] our of the same transaction, occurrences, or series of transactions or occurrences and if any question of law or fact common to all these person will arise in the action.” Fed. R. Civ. P. 20(a). The determination of whether claims arise out of the same transaction or occurrences for purposes of Rule 20 is determined on a case-by-case basis. Mosley v. General Motors Corp., 497 F. 2d 1130, 1333 (8th Cir. 1974). Joinder based on separate but similar behavior by people using the internet for copyright infringement is improper. LaFace Records, LLC v. Does 1-38, No. 5:07-CF-298-BR, 2008 WL 544992 (E.D.N.C. Feb. 27, 2008).  It’s not enough to do the same thing the same way. So Wal-Mart can sue all those people who stole shirts by wearing them under their clothing while exiting the store.

Applying the transactional test for permissive joinder, which requires that the parties must assert rights (or have rights asserted against them) that arise from related activities, the court should find that the troll’s claims in such cases are not reasonably related or properly joined.

On this basis, courts have usually dismissed the whole case, or dismissed or severed as to all but the first Doe defendant.

Next week, another procedural defense, just for you!

PS – Remember to call a lawyer if you actually get sued, before doing ANYTHING! And don’t call plaintiff’s counsel before talking to your own lawyer. They really want your name and that’s the last thing you want (hence the subpoena to your ISP).

THURSDAY, MAY 17, 2012

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