Monthly Archives: March 2015

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Naming IP Address Subscriber “Objectively Reasonable”

The 11th Circuit Court of Appeals has issued a ruling that naming an IP address subscriber as a defendant is “objectively reasonable.”

In the case of Malibu Media v. Pelizzo the defendant demanded costs and fees after being named in a BitTorrent copyright case. A key issue was whether or not Malibu Media named the defendant in good faith when his IP address was shown to have been the source of notable infringing activity. Later evidence indicated that Pelizzo himself might not be the infringer.   Once it appeared Pelizzo might not be the infringer, Malibu offered to dismiss the case but Pelizzo rejected Malibu’s offer and demanded costs and fees. The District Court denied Pelizzo his attorney fees under the Copyright Act and Pelizzo appealed. The 11th Circuit Court of Appeals upheld the District Court and stated:

We find no abuse of discretion in the district court’s conclusion … that Malibu’s subjective motivation for filing suit was not improper or that the suit was not frivolous… To whomever the subject IP address was subscribed, it is undisputed that a genuinely phenomenal number of films was being downloaded using it. …   Because of the nature of the films, Pelizzo justly was ashamed to be a part of the litigation, but the magistrate judge found no record evidence that Malibu sued him for that reason, and Pelizzo has not presented any such evidence. Using detection methods it had used hundreds of times before, Malibu determined that the IP address apparently assigned to Pelizzo was the vehicle for the infringements and acted accordingly.

We also find no abuse of discretion in the district court’s conclusion that Malibu, up to a point, acted in an objectively reasonable manner and in a manner that served the purposes of the Copyright Act: compensation and deterrence. Contrary to Pelizzo’s assertion, Malibu could not have been expected simply to take his word for the fact that he had not infringed Malibu’s copyrights, given the substantial evidence implicating Pelizzo.

 A ruling that Pelizzo should be awarded $6,815.50, for what the Court called a “knee-jerk” reaction to Pelizzo’s initial demand for fees was not changed, but the court verified that the $24,000 in attorney fees sought by Pelizzo was properly denied.

The case is Malibu Media v. Leo Pelizzo, 14-11795 (11th Cir, 2015)
(S.D. FL. D.C. Docket No. 1:12-cv-22768-PAS)

“I downloaded a movie and I should be awarded attorney fees.” AKA: The Worst Motion to Quash

Much is said about BitTorrent litigation, but sometimes it takes an honest defendant, or their counsel, to make things perfectly clear. One such exemplar is a recent Motion to Quash filed by counsel in the New Jersey case of Popular Oaks v. John Doe, 2:14-cv-07901.

To quote the motion:

I do not understand why I am being sued. I simply went online to a website that allows people to share files. I downloaded a movie and suddenly I am being sued in federal court for copyright infringement.

 If you do not understand why you are being sued after this statement, you probably also do not understand where babies come from. The motion goes on to complain:

Essentially, Plaintiff’s theory is that someone who downloads movies from the internet, and makes them available to anyone by way of so-called peer-to-peer software (which enable users to exchange files directly between their computers without intermediary services) has violated both the copyright owner’s right to make copies, 17 U.S. C. sec. 106(1), and the distribution right, 17 U.S.C. sec 106(3).

Yes. That is exactly the theory and the law. Thank you for the citations. As for the requested relief this person seeks:

The Court should order the subpoena quashed, vacate the Order Granting Discovery and dismiss the complaint in its entirety because: 1) An undue burden would be placed upon the Defendant, 2) Defendant’s First Amendment rights to free speech (on the Internet) has not been waived, and 3) Plaintiff has failed to allege facts supporting the existence of personal jurisdiction over Defendant. Additionally, Defendant should be awarded a reasonable attorney’s fee for having to file this motion…

The fact that this is a motion by a party (through counsel no less) that verifies they did in fact download the movie (“I downloaded a movie…”) and accurately recites the law that verifies this is a violation, and they still turn around and asks for their attorney fees defies logic. This demonstrates the fundamental disconnect in BitTorrent litigation, namely, those who fight it by and large simply believe they should be allowed to freely steal movies.

The case is Popular Oaks v. John Doe, 2:14-cv-07901 (D. NJ.)

The relevant motion is:14-cv-7901_Doc.6-Worst Motion to Quash

The opposition filed, which explains the problems with this motion in detail is: 2:14-cv-07901_8-Opposition to Worst Motion to Quash

BitTorrent Litigation: Court Threatens Sanctions Against Vexatious Doe Defendant

Judge Richard A. Jones has had about enough of the boilerplate and Internet sourced self-help Motions to Quash being filed by defendants in Washington and on March 11, 2015 issued an order threating one “Mr. Doe” with monetary sanctions.

Initially this “Mr. Doe” or John Doe No. 4 filed a motion to quash arguing many of the standard boilerplate arguments. The court was not impressed.

[Mr. Doe] asserts that Plaintiff has improperly joined ten “John Doe” defendants in this case. He also asserts (without providing evidence) that he has learned from “prior defendants” that Plaintiff follows up the identification of a Comcast subscriber with “forceful correspondence, persistent phone calls and other methods asking for money to avoid their lawsuit.” He asserts that he has never heard of the Dallas Buyers Club movie and he has never unlawfully downloaded it.

The court rejected the improper joinder arguments and the denial of liability as a basis for quashing the subpoena, and pointed out that allegations of “strong-arm tactics” were without any actual evidence. (“Mr. Doe has not, however, given the court a basis to conclude Plaintiff is actually using those tactics.”)

However, not satisfied, “Mr. Doe” proceeded to file further objections and motions. After a third try, the court had enough and stated:

This is the third motion Mr. Doe has filed targeting the same subpoena issued to Comcast. Just as the court has denied the previous two motions, it denies this one. If Mr. Doe persists in filing motions attacking the subpoena, the court will terminate those motions without further notice. It may also issue an order to show cause why it should not designate Mr. Doe as a vexatious litigant and issue monetary sanctions against him.

As a caution, it appears Judge Jones’ patience with BitTorrent infringers is wearing thin.

The case is Dallas Buyers Club, LLC v. John Does 1-10, W.D. Washington, 14-cv-01819-RAJ.

The relevant orders of the court:

Order Denying Motion 14-cv-01819-RAJ_Doc_16

Order Re Sanctions 14-cv-01819-RAJ_Doc_21

Hall & Oats say “I Can’t Go for That” Re: Hauln’ Oats

Musicians Daryl Hall and John Oats, commonly referred to as Hall & Oats, who oddly operate under the business entity of Whole Oats Enterprises, itself a play on their name, have brought a claim against Early Bird Foods & Co., LLC for their use of the name Hauln’ Oats in connection with oatmeal and food delivery.

At issue will be whether anyone is likely to be deceived into believing Hauln’ Oats is in any way “provided by, or sponsored by, or approved by, or licensed by, or affiliated with or in some other way legitimately connected to” the musicians Hall & Oats. If so, then there is a very good chance Hall & Oats will prevail.

This complaint is apparently after real issues of confusion arose and a number of attempts by Hall & Oats’ counsel to get Early Bird to clarify matters with their customers and fans and stop their infringing activity as apparently they already license the name Hauln’ Oats to another similar company.  Hall & Oats are asking the court to force Early Bird to stop using the name and while no specific sum of money is demanded, there is a request turn over what Hall & Oats claim are wrongly acquired profits.

Some people may think Hall & Outs are “Out of Touch” on this one, but when asked about being associated with this new granola company they are quoted as saying, “I Can’t Go For That.”

Feel free to write your own bad puns.

The complaint is captioned Whole Oats Enterprises v. Early Bird Foods & Co., LLC, EDNY 1:15-cv-01124-RRM-JO.

The full text of the complaint may be found here: Whole Oats Enterprises v. Early Bird Foods & Co., LLC, EDNY 1:15-cv-01124-RRM-JO

Florida Judge Demands Joinder In BitTorrent Litigation

Across the nation there are arguments on whether or not a plaintiff may properly join defendants in BitTorrent litigation. Each case filed costs several thousand dollars and by joining multiple defendants there are notable cost savings. Often defendants argue against joinder in an attempt to make it harder for rights holders to enforce their copyrights, hoping the rights holders will not be able to afford to pursue them. On the other side, rights holders argue they need joinder in order to enforce their rights in a cost effective manner. Courts are split in whether or not defendants can force rights holders to sever cases and often there are different outcomes in the same district with some judges allowing joined cases and a different judge in the same district across the hall demanding individual cases.

Some plaintiffs have elected to skip over this issue and simply file against individual defendants in the initial suit, though this often results in very high awards even without any damages as individual cases are expensive. (Voltage v. Horner, 14-cv-1406, Jan. 7, 2015, D Or. $15,230 for “actual costs, fees but waiving any claim for damages.”) However, a Judge in Florida appears to be taking a different view and is not only allowing joined cases, she is demanding them.

In Good Man Productions v. Doe, 14-cv-62727-BB, in the Southern District of Florida Judge Bloom has ordered, “all future filings in this case shall be [joined with this case]” … “in the interests of judicial efficiency.”   While the joined v. individual suit arguments have often been fought on the issue of swarm size and location, Judge Bloom seems to have skipped over all the petty arguments and in a curt order recognized that when essentially the same claims, facts and often nearly identical complaints are at issue, joinder is proper and will be demanded.

Relevant Order: Good Man Productions v. Doe, 14-cv-62727-BB Feb. 12, 2015, Md. Fla.

Debunking the Troll Myth

With so much anecdotal evidence, real and serious investigation of the expansion of copyright litigation is hard to come by. But in an article published by Nova Southeastern University in a survey of over 1,500 BitTorrent related cases the author reviews the common defenses asserted, their general inadequacy, and concludes:

To the knowledge of the author, only three BitTorrent cases have gone to trial resulting in a judgment being entered. All three of these cases resulted in a judgment for the copyright owner, with substantial damages being awarded.

* * *

In the end analysis, the author found no cases in which a file-sharing defendant went to trial, and prevailed. The more common theme was a blanket denial, followed by an attempt to destroy the evidence.

The full article is worth reading for anyone who has any interest in this litigation:

Copyright Infringement Litigation Over BitTorrent File Sharing: Truth or Troll?