Piracy Costs LA Infringer $26,000

In the recent case of QOTD v. Walther, plaintiff brought an action against a party that was using BitTorrent to download and then share the motion picture Queen of the Desert. After investigation and being served with the Complaint, Walther refused to respond and a judgment was entered against him.

The result was an award in favor of QOTD for $15,000 in damages and over $11,000 in costs and fees for a total of over $26,000.

The Court further ordered Walther to, “refrain from knowingly and willfully using BitTorrent or any other online media distribution system for copying or downloading content in violation of United States Copyright laws.”

Relevant Document: 16-cv-02803 Judgment

 

BitTorrent Defendant’s Attack Of Experts Denied

In BitTorrent litigation against pirates the first step is to identify the subscriber or party behind the Internet protocol address used to download a movie. For a while it was common to file a Motion to Quash and for pirates to try and remain hidden. This tactic has fallen from favor as it is rarely successful and usually just runs up legal bills. But in a recent California case someone decided to spend some real money, hire several experts, and try again.

In the case of Malibu Media v. Doe, a defendant went all out to fight the subpoena and argued, “plaintiff should not have been permitted to issue the subpoena in the first place, because plaintiff’s factual showing in support of the requested expedited discovery is lacking and inaccurate.”  The defendant argued (1) the software and methods used by plaintiff’s investigators to detect infringement were inadequate; (2) the method used by plaintiff’s investigators to verify infringement lacked integrity; and (3) plaintiff failed to protect its works according to industry media distribution standards.

Defendant submitted experts reports attacking the reliability of pirate detection software from Dr. Kal Toth, and a “Bittorrent media distribution expert,” Bradley Witteman. But after review, the court found them un-persuasive and ordered the discovery.

The defendant also raised the issue of Malibu Media using a foreign investigator, to which the court responded:

Defendant further suggests that Mr. Fieser is not licensed as a private investigator in California, and that the court therefore should not accept his testimony. That argument borders on the frivolous. Individuals provide evidence in court every day without necessarily being licensed as private investigators. Significantly, defendant cites no legal authority for the proposition that Mr. Fieser, a German resident, required a California private investigator license to perform the type of work he did for plaintiff, or to provide evidence regarding such work in court.

In sum, the Court characterized much of the defendant’s arguments as “rough” and “speculative” and ordered the disclosure of the defendant’s identity, confirming the long standing tradition that a Motion to Quash results in little more than extra legal fees.

The case is Malibu Media, LLC v. Doe, 16-cv-01733-JAM-KJN

Relevant Document: 16-cv-1733 22 Order

DMCA Notices with a bite

As reported by Antonelli Law there is a new party sending out DMCA notices – Rightsenforcement.com.

This new entry into the field differs from prior participants in one major way, if you ignore the notices, they sue.  In particular they have been collecting a number of cases with judgments of $10,000 – $20,000 as seen on the web page at: https://rightsenforcement.com/recent-cases

All of this begs the question: With damages of thousands of dollars, why are people still downloading movies?

 

Judge Tells Millennium Films: Next time ask for more

The pending case of Millennium Films, et al. v. Robinson, 2:16-cv-04718, C.D. Cal., has come to its conclusion with an unexpected twist of the Judge awarding more than plaintiffs requested.

Millennium Films v. Robinson was a BitTorrent case that was distinct from the beginning with Millennium Films’ own in-house counsel taking the lead and bringing claims against a BitTorrent pirate.   Discovery proceeded along the usual course with the subscriber and then defendant identified as Robinson who used BitTorrent to download three Millennium titles: Criminal (2016), London Has Fallen (2016) and Mechanic: Resurrection (2016).(Each title owned by its respective owner, also parties to the case.)

In it’s request for relief Millennium Films petitioned the court for three times the statutory minimum of $750 per title, or $2,250 in statutory damages per title. However, Judge Steven Wilson rejected Millennium’s request and responded with, “The Court, exercising its wide discretion, believes that a total of $9,000 total for the three infringing works combined is the proper amount to award in this case” and awarded four times the statutory minimum together with an injunction against Robinson for downloading any future Millennium titles.

Relevant Document:

16-cv-04718 36 Order and Opinion, Filed 02/15/17

Single Satisfaction Smackdown

As BitTorrent defendants are realizing the evidence is stacked against them they look for new ways to avoid liability for their theft. A recent trend for defendants seeking an ‘out’ or ‘get out of jail free’ card is the presentation of the Single Satisfaction Rule arguing that those caught before them have already paid all the damages a rights holder might recover so somehow rights holders no longer have a claim.

In its simplest terms the Single Satisfaction Rule, as defendants might want to apply it, would read the Copyright Act maximum of $150,000 in statutory damages for each infringement to incorporate all members of a swarm. The idea is that once a copyright holder has recovered $150,000 total from everyone in a swarm there is nothing left to recover, or after a number of parties have been sued and the total amount paid reaches $150,000, then the rights holder can no longer bring suit, as there is a full ‘single’ satisfaction.

Of course this misses a few issues and glosses over the reality. The Single Satisfaction Rule, even if read the way some defendants would like, would not mean there is no more liability. Even if there are no additional damages a rights holder can file for injunctive relief and be awarded costs and fees. But more significantly, to apply the single satisfaction rule all the defendants or members of a swarm would need to be jointly and severally liable for the full damages of the entire swarm. As many swarms have hundreds of thousands of participants over the life of the swarm, this would mean that anyone that ever joined the swarm would be liable for the full damages of everyone that was in the swarm at any time. Even a modest 100,000 member swarm, with damages of $10 per download, would mean actual damages would be $1,000,000. With joint and several liability, every member would be liable for the full $1,000,000 and plaintiffs would be able to collect as much of that $1,000,000 as each defendant could pay before moving on to the next defendant. If there is more than one swarm (and often there are dozens), then the damages total would restart for each additional swarm. The Single Satisfaction Rule would also mandate all members of a swarm be joined in a single case with tens of thousands of defendants forced to join wherever the case might be filed. In other words, The Single Satisfaction Rule, as properly applied to join all members of a swarm and make them each individually liable for the full damages of the swarm, would be a boon to rights holders.

Clearly this has not been well thought out by many of those that argue the defense. The outcome argued has even recently been called “absurd” by the 9th Circuit. Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1191-92 (9th Cir. 2016). And as ruled on by a judge in the pending case of QOTD Film Investment v. Wilson, 16-cv-00371 (WDWA March 3, 2017) a BitTorrent defendant’s Single Satisfaction Rule claim has “no basis in the law.”

Relevant Documents:

16-cv-00371-RSL 82: QOTD Film Investment v. Wilson’s Counterclaims based on a failed attempt to argue the Single Satisfaction Rule

16-cv-00371-RSL 94: Order Dismissing Single Satisfaction Rule Counterclaims

 

 

Pirates’ Class Action Dismissed And Sent Back to Law School

In a recent case in Illinois, BitTorrent pirates attempted to launch a counter-attack in the form of a class action on behalf of infringers. The class action complaint, full of speculation and hyperbole, claimed rights holders relied on fake experts and were making unsubstantiated claims and that the enforcement actions were for the “purpose of income generation through exploitation of the court system.”

As per the complaint filed, the allegations included:

“[Rightsholders] have been engaged in a conspiracy to monetize infringement whereby they use questionable means to entrap unsuspecting Illinois residents who have allegedly violated [Rightsholders’] copyrights, and then extort money from these individuals using threatening and misleading settlement and litigation tactics under the guise of the Copyright Act.”

The complaint was filed on January 3 and sounded good to the layman. But in a hearing the next day, wasting no time at all the Court pointed out the obvious flaws in the attempted class action and stated:

“Well, first of all, you need to go back, both of you, to Civil Procedure in law school and determine whether it’s an appropriately filed third-party complaint.”

Not surprising, on January 10, 2017 the class action was dismissed with the filing counsel acknowledging that trying to maintain the class action would be a waste of time and “fruitless.”

A copy of the class action complaint as filed: 15-cv-06708 Class Action Complaint

A copy of the dismissal and transcript of proceedings: 15-cv-06708 Notice of Dismissal with Transcript

Bittorrent Pirate Ordered to Pay $20,000

In a recent default judgment, where a defendant failed to respond or appear, LHF Productions, Inc., was awarded $15,000 in damages for the illegal download of the motion picture London Has Fallen.   The judge found the defendant should pay $15,000 in damages and that this amount was “proper and reasonable to compensate Plaintiff and to provide notice and act as a deterrent to others.” The judge further awarded LHF $4,500 in attorney fees and $465 in costs for a total of $19,965.

The defendant was also “ORDERED to, in the future, refrain from knowingly and willfully using BitTorrent or any other online media distribution system for copying or downloading content in violation of U.S. copyright law.”

A full copy of the order is available: LHF Productions v. Alvarez, 2: 16-cv-01196-SRB

California Federal Courts Affirm The Standard: Subscribers Must Cooperate In Identifying Infringers

In dealing with internet piracy, at least initially rights holders are rarely able to identify more than the internet protocol (IP) address used to download or infringe their work. The next step is to then subpoena an internet service provider to see who was assigned the IP address, or who pays the bill. Despite reports that the majority of the time (+60%) the eventual infringer is also the subscriber that pays the bill, courts generally find that merely paying the bill is not enough and a rights holder must also find some additional evidence that points to a specific person at a residence.

An issue can arise if the subscriber, the person who pays the bill and likely has all the relevant information, simply refuses to cooperate or provide any information, thus effectively protecting or hiding the infringer (assuming they are not the liable party).   Last week the California Federal Courts reaffirmed and made all but standard the growing rule: A subscriber MUST cooperate in any rightsholder investigation with the issuance of orders in five cases, all with basically the same language:

  1. Subscribers must appear and answer questions about their internet service and who may have had access.
  2. Subscribers are advised to hire an attorney.
  3. Subscribers are warned that ignoring the Court’s Order may result in sanctions, including an award of attorney fees and possibly the entry of a default judgment for money damages.

The relevant cases are:

3:16-cv-00980, Ecf. 13
3:16-cv-00317, Ecf. 15
3:16-cv-00466, Ecf. 15
3:16-cv-00467, Ecf. 15
3:16-cv-00977, Ecf. 15

An exemplar opinion: Dallas Buyers Club v. Doe, 3:16-cv-00466-BAS-DHB

 

Subscribers Sanctioned in BitTorrent Litigation

Paying for internet service does not by itself make a party liable for any infringing activity, but as two parties have recently learned failing to cooperate in helping identify the infringer may have serious consequences.

In a traditional bittorrent case when infringing activity is traced to an IP address the plaintiff must first identify the subscriber who pays for the service. Then if the subscriber is not the liable party further investigation is needed to identify the actual infringer who may be another party with access such as a roommate or someone else.

But if the subscriber refuses to cooperate with the plaintiff this does not end the process. In a recent pair of federal court cases subscribers have been found in contempt and sanctioned for their failure to respond to letters and court orders directing them to provide information on their internet service and assist in identifying the actual infringer.

As per the opinion:

…Dallas then served Pinnell with a Rule 45 subpoena via United States Mail requiring Pinnell’ s appearance at a deposition on August 9, 2016. After Pinnell failed to appear and participate at that deposition, as required by the Rule 45 subpoena, Dallas filed a motion for order to show cause.

            Pinnell failed to appear at the show cause hearing. The record indicates Pinnell has repeatedly failed to appear as required by the subpoena and this court’s show cause order. Further, Pinnell has made no attempt to provide excuses for her nonappearances and noncompliance with the court orders. As such, the court finds Pinnell in contempt.

Full text: Dallas Buyers Club v. Doe, 3:16-cv-00551 (D. Or. Oct. 21, 2016)

In a similar finding:

…LHF personally served Thompson with a Rule 45 subpoena which required Thompson’s appearance at a deposition on August 9, 2016. Thompson failed to appear at the deposition, thus violating a court order. Subsequently, LHF filed a Motion for Order to Show Cause.

            Thompson failed to appear at the show cause hearing and the record shows Thompson has repeatedly failed to appear, in violation of the subpoena and this court’s Order to Show Cause. Further, Thompson has made no attempt to provide an explanation for his nonappearances and noncompliance with the court orders. As such, the court finds Thompson in contempt.

Full text: LHF Productions v. Doe, 3:16-cv-00716 (D. Or. Oct. 21, 2016)

In both cases plaintiffs were awarded costs and fees.

 

Denmark – Court Awards Damages In Denmark BitTorrent Action

NJORD Law firm has just received the first favorable decision from the Danish courts in a bittorrent action for the download of their client’s motion picture.

The judgement for the Rights Holder was granted “based on the case as presented including the evidence submitted”.

The reasoning is short but strong. NJORD Law firm included in their submission all correspondence with the defendant containing the arguments and defenses as well as factual circumstances of the case.

The damages of the claim were set at DKK 5,000 (€ 667) being only a part of a potential bigger claim. The Rights Holder has been granted the full amount as well as interest and also awarded cost of DKK 1,560 (€ 208). The cost alone being higher than NJORDS settlement offer of € 200 and considered high in Danish court practice.