Monthly Archives: November 2015

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Infringer Receives Lifetime Ban From BitTorrent

In an Order issued in the District of Oregon on Nov. 5, 2015, an infringer has received an lifetime ban forbidding his use of “BitTorrent or the Internet for the copying or downloading of unlicensed copyrighted content.”

The order states:

(3) Defendant Justin Klemmer’s conduct has been willful, intentional, in disregard of and indifferent to plaintiff’s rights with the intent to deprive plaintiff of income and cause plaintiff harm.

(4) Statutory damages are proper to both compensate the plaintiff and provide notice and to act as a deterrence to others. Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 500 (!st Cir. 2011), cert. denied, (U.S. May 21, 2012). To compensate the plaintiff and provide proper notice and deterrence to others, statutory damages in the sum of $10,000 are awarded plaintiff.

(5) A permanent injunction is ordered enjoining defendant from infringing plaintiffs rights in their motion picture, including without limitation using the internet to reproduce, distribute or copy plaintiffs motion picture, and further directing defendant to destroy all unauthorized copies of plaintiffs motion pictures and to delete all software used to make or distribute those copies or exchange unlicensed content using the BitTorrent protocol.

(6) Defendant is further enjoined from using BitTorrent or the Internet for the copying or downloading of unlicensed copyrighted content.

Plaintiff was also awarded costs and fees to be determined.

The case is Dallas Buyers Club v. Klemmer, 6:15-cv-00612, D. OR. Nov. 5, 2015.

Final Form TPP Released

The final form of the Trans-Pacific Partnership or TPP trade agreement has been released and as expected it comes down hard on infringers and piracy.

Art. 18.2: Objectives

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

While many of the provisions mirror the current law in the United States, there are some expressions of artist rights that are affirming, such as:

Art. 18.60: Right of Distribution

Each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorize or prohibit the making available to the public of the original and copies of their works, performances and phonograms through sale or other transfer of ownership.

With respect to penalties, the United States model appears largely intact.

Art. 18.74-3. Each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority at least to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.

Art. 18.74-6. (a) & (b) provide for statutory damages sufficient to deter others (Ref. Art. 18.74-8) and punitive damages will be added, together with costs and fees under Art. 18.74-17.

One point of note is with respect to criminal penalties under Art. 18.77 – The TPP provides for imprisonment of infringers for not only commercial piracy but for anything determined to have “a substantial prejudicial impact.”

Art. 18.77 Criminal Penalties
. . .
Including criminal penalties for (b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace.

What may constitute a “a substantial prejudicial impact” under the TPP is not defined, but in California, this number has already been established to be the distribution of as few as 10 copies through means such as BitTorrent. Cal. Pen. Code § 653aa

Another issue of note is the imposition of penalties for “aiding and abetting.” This would be expected to extend liability for development of tools and means for piracy, such as web pages, software and possibly even discussion forums which expressly promote piracy.

Art. 18.77 -5

With respect to the offences for which this Article requires a Party to provide for criminal procedures and penalties, each Party shall ensure that criminal liability for aiding and abetting is available under its law.


The full text may be found at the USTR web site.