Author Archives: Rationality

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

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.

 

Pirate Queen of the Desert: Injunction and $10,500 judgment

In an action for the bittorrent download and distribution of their film Queen of the Desert, QOTD Film Investment has obtained an injunction together with a judgment for $10,500 for damages, costs and fees in the California federal court.

Copy of the Judgment: 3-16-cv-00749-DMS-AGS_Judgment_Order

Compelled Internet Subscriber Depositions

Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
         – Justice Souter in Footnote 12, MGM v. Grokster, 545 U.S. 913 (2005).

Piracy and copyright infringing activity that takes place over the Internet is problematic as often all a plaintiff or rights-holder only knows is the IP address used by the infringer. This IP address can lead to a users or subscriber’s account and the ISP may be able to tell the rights-holder who is behind paying the bill. But if the account goes to a house with several occupants, this does not answer the question of who might be the pirate. As Justice Souter made clear, paying the bill, without anything more, is not enough.

The Grokster footnote is often held as a shield for subscribers who do not personally use their internet service for infringing activity such a BitTorrent. But this shield is not as broad or strong as many might believe. Even after Grokster many courts continue to hold that if a party knows of infringing activity and fails to take action, then they are liable. See Perfect 10 v. Google, 508 F.3d 1146, 1171-72; citing A&M Records v. Napster, 239 F.3d 1004, 1021 (9th Cir., 2001)(“Because Napster knew of the availability of infringing music files, assisted users in accessing such files, and failed to block access to such files, we concluded that Napster materially contributed to infringement.”) See also, Religious Technology Center v. Netcom On-Line, 907 F.Supp. 1361, 1365-66 (N.D.Cal.1995)(Liability proper if party knew or should have known of infringing activity and failed to simply cancel account.) There is also the case of extending liability for providing an anonymizing TOR node, even without actual knowledge of any piracy. Dallas Buyers Club v. Huszar, 3:15-0907, (D.Or., April 28, 2016)(“Huszar actively and knowingly provided an unknown number of computer users worldwide with access to his Tor VM.”)

As a practical matter, even if the subscriber is not liable and knew nothing about the piracy through their network, they are still the person that paid the bill and the only one the rights-holder can identify through the IP address. Courts are recognizing this with California being the newest district to begin to compel subscribers who deny liability to appear and share what they know about who may be the infringer.

In several matching opinions, including QOTD Film Investment v. Doe, 3:16-cv-00749 (Oct. 4, 2016) and LHF Productions v. Doe, 3:16-cv-01157 (Sept. 30, 2016) the courts in California are now directing that subscribers who only pay the bill may be compelled to sit for a 1 hour deposition, cautioning plaintiffs:

Questions are limited to establishing the identity of the alleged infringer(s). The deposition is not to be treated as a fishing expedition for information other than the identity of the alleged infringer(s).

But the Courts are also cautioning subscribers:

Plaintiff shall notify the subscriber that ignoring a Court Order, a subpoena seeking the subscriber’s deposition, or a Summons and Complaint may result in sanctions including an award of attorney fees and possibly the entry of a default judgment for money damages.

These new California orders bring California in line with Louisiana (ELargo Holdings v. Doe, 2:16-cv-03144, June 24, 2016) and the well establishing Standing Orders of Oregon. Standing Order 2016-8, automatically granting a two our deposition of all subscribers in any bittorrent case filed, and Standing Order 2016-7, advising parties:

Notwithstanding contrary information available through the Internet, if a subscriber or defendant ignores a Court Order, a subpoena seeking the subscriber’s deposition, or a Summons and Complaint, then plaintiff may ask the Court for relief, including an award of attorney fees, and possibly the entry of a default judgment for money damages.

Accordingly, it is important that subscribers and defendants seek proper legal advice concerning their rights and obligations.

So while paying a bill (and nothing more) may allow a subscriber to escape liability, they can still be compelled to share what they know about who else may have been present and anyone that might have had access to their internet service which was used to commit piracy.

Malibu Media Litigation Program: “Exactly” What The Copyright Act Is For

In a recent podcast, Anandashankar Mazumdar, the legal editor of BNA’s Patent, Trademark & Copyright Journal notes:

“The Copyright act is intended to give creators legally enforceable rights, now Malibu Media is doing exactly what the copyright act seems to contemplate they will do. They will create works, sell them and distribute them and if somebody infringes their right they will go to court and make them stop.”

The full audio of the Aug 15, 2016 CODE & CONDUIT Podcast:

 

$10,000 Judgment for Downloading in Louisiana

Plaintiff ELargo Holdings, owner of the motion picture Close Range (IMDB) has obtained a $10,000 judgment against a BitTorrent infringer, together with a permanent injunction against their use of BitTorrent in violation of U.S. copyright law.

The case is ELargo Holdings, LLC v. Doe-104.5.232.186, E.D.LA. 2:16-cv-02867

For a copy of the judgment and permanent injunction: 2:16-cv-02867 Judgment and Order