Monthly Archives: December 2015

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Dallas Buyers Club only target iiNet customers – as of now

In yesterday’s hearing, Dallas Buyers Club LLC and Voltage Pictures’ lawyers said part of more than 4700 IP addresses they are proposing to contact foe alleged movie downloads were all used by iiNet subscribers. However, 10% of the IP addresses do not represent all the iiNet customers that the DBC LLC believes may have infringed copyright. Aside from iiNet, the complete collection of IP addresses came from Adam Internet, Amnet Broadband, Dodo, Internode and Wideband Networks Pty Ltd.

Previously, Justice Nye Perram who’s presiding over the case granted a DBC LLC application for preliminary discovery where it gains access to ISP customers contact details link to the IP addresses involved in Dallas Buyers Club downloading. However, he imposed a stay on that order in August.

DBC LLC modified the method used to calculate the settlement that they would propose. Initially, they had constructed a formula based on the cost of the film when you purchase a copy, licence fee for the distribution of film (pirate’s uploading activities), a portion of the DBC’s legal costs and a fine for an individual’s piracy of other films. The company was willing to take an approach as “one size fits all” to the proposed demands. They excluded other unauthorised downloads of films as part of its settlement formula but kept the licence fee for the distribution.

When Dallas Buyers Club applied to the court in September to lift the stay, they offered the $60,000 amount in exchange for access of customer details of 10% of the IP addresses but the ISPs opposed the proposal.

DBC’s request for an adjournment while they sought to gather more evidence about the licence fee to seek from downloaders was denied by Judge Perram. A new ruling is expected next week.

BitTorrent Defendant Counterclaims Struck – Costs and Fees Awarded to Plaintiff

In a case of an aggressive defense brought against Voltage Pictures and Dallas Buyers Club for their enforcement of their rights, the court has sided with Voltage and dismissed the defendant’s counterclaims, dismissed six of the seven affirmative defenses and awarded Voltage costs and fees for the overly aggressive stance taken by the defendant.

The complaint filed claims the defendant downloaded and distributed the motion picture Dallas Buyers Club through BitTorrent. Plaintiff Dallas Buyers Club seeks to enforce its copyrights in the motion picture and Voltage Pictures joins in the case asserting its state trademark rights.  In the answer filed the defendant asserted two counterclaims, one for a declaratory judgment of non-infringement and a second for abuse of process.  The court dismissed both counterclaims and awarded Voltage costs and fees.

The defendant also asserted seven counterclaims, including:

  1. Failure to state a claim.
  2. Misuse of copyright.
  3. Unclean hands.
  4. Damages sought are excessive.
  5. Plaintiffs have failed to join one or more indispensable parties to this action.
  6. Plaintiffs have improperly joined parties.
  7. Third party conduct.

The court struck six of the seven affirmative defenses as improper.  As statutory damages sought may range from $750 to $150,000 and have not been determined, the court left open the possibility that an eventual damages award may be excessive.

The full text of the opinion: Voltage v. Blake, 3:14-cv-01875-AC, (D.Or., Dec. 17, 2015)

Court finds Defendant willfully, intentionally and maliciously infringed 59 of Plaintiffs registered copyrights

Case: Malibu Media v. Doe, 1:14-cv-10155 (SDNY, Dec. 9, 2015)

Because the opinion says everything that needs to be said:

Plaintiff, Malibu Media, LLC, sued John Doe Defendant for using his computer, the internet and the BitTorrent protocol to download and distribute 59 of Plaintiffs registered copyrighted works. Defendant denied the allegations and argued that Plaintiff brought a frivolous case against him. During discovery, Plaintiffs computer forensic expert, Mr. Patrick Paige, examined Defendant’s computer. Mr. Paige’s report concludes Defendant used computer file destruction software immediately prior to the time he produced his computer over for forensic imaging and examination.

. . .

In late November, 2015, Defendant produced certain travel documents which he claimed proves that he was not in his home when the infringement was occurring. The day after receiving these documents, Plaintiff filed a Motion For Leave to Take Immediate Discovery. That Motion set forth facts strongly suggesting the dates on the travel documents were intentionally altered.

The Court granted Plaintiffs Motion. Thereafter, Plaintiff propounded third party subpoenas to various travel companies. In the interim, prior counsel withdrew and Defendant retained new counsel. Shortly after retaining new counsel, Defendant produced the unaltered travel documents proving he was at home when the infringement was occurring but was not at home when infringement was not occurring.

 

Defendant admits he committed four (4) wrongs: (a) infringement; (b) falsely denying the infringement; (c) altering evidence; and (d) unnecessarily causing Malibu to incur attorneys’ fees and costs. The Court takes note that Defendant’s apology and admissions only came after there was no doubt that Defendant could not escape the consequences of his conduct.

 

Based on the foregoing, the Court finds Defendant willfully, intentionally and maliciously infringed 59 of Plaintiffs registered copyrights in violation of Plaintiffs copyrights as set forth in 17 U.S.C. § 106. Consequently, a substantial penalty sufficient to punish Defendant and deter similar conduct by other defendants is warranted.

 

Via teleconference on December 3, 2015, Defendant’s counsel advised Plaintiff that

Defendant is in an emotionally fragile state. In response, Plaintiff advised that it does not wish to cause Defendant so much stress that he breaks. At a status conference held on December 8, 2015, Plaintiff admitted it wants Defendant to be punished but stated that it does not want the punishment to be so severe that Defendant is unable to move forward or recover from this experience. With this as background, at the status conference, the parties also stated that they may be able to reach a settlement. They each agreed to work toward that end in good faith. The Court advises the parties that if this matter proceeds Plaintiff would be entitled to substantial statutory damages and likely its reasonable attorneys’ fees. Accordingly, Plaintiff shall advise the Court by January 8, 2016 if the Parties have been able to reach a settlement or if further proceedings will be necessary. If a settlement is reached it shall be filed with the Court. Further, given the nature of the conduct in this matter, any settlement will be subject to the Court’s approval.

8th Circuit Court of Appeals: Suing an IP address subscriber is reasonable

In the case of Killer Joe Nevada v. Leaverton, Killer Joe Nevada, LLC sued internet subscriber Leigh Leaverton for infringement under the Copyright Act for the download and distribution of the motion picture Killer Joe. When on investigation it appeared Leaverton was only the subscriber who paid for the Internet service and not the infringer, Killer Joe moved to voluntarily dismiss its suit. Leaverton objected and demanded her attorney’s fees. The court dismissed the suit and denied Leaverton’s requests for attorney’s fees.

Leaverton appealed and the key issue on appeal was whether or not it was reasonable for a subscriber to be sued solely for being the party responsible for the internet service used by the infringer and whether the District Court abused its discretion in denying her attorney fees.

As per the Court of Appeals:

[Leaverton] argues that the district court erroneously ruled it was reasonable and not frivolous for Killer Joe Nevada to sue the subscriber for the IP address. Leaverton believes it is unreasonable for a Copyright Act plaintiff to sue the subscriber without first investigating whether the subscriber was responsible for the infringement.
          . . .
Leaverton cites no binding authority that a Copyright Act suit based on the infringer’s IP address is frivolous or unreasonable. The district court thus did not abuse its discretion by concluding that Killer Joe Nevada’s acts were reasonable.
          . . .
…because Killer Joe Nevada promptly dismissed its lawsuit once it learned Leaverton was not the infringer, Killer Joe Nevada had proper motives to sue the subscriber.

If nothing else, this case stands for the principal that providing internet service alone, though it may not make you liable for infringing activity, reasonably exposes you to potential litigation.

Full Text: Killer Joe Nevada v. Leaverton, No. 14-3274, 8th Circuit Court of Appeals, Dec. 4, 2015