Monthly Archives: March 2017

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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