Author Archives: Art Schopenhauer

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

 

 

Default Gamble

To default or not to default, that is often a question when facing litigation.  In the realm of online copyright infringement it is no different.   Many attorneys actively advise clients to ignore letters and even complaints with the knowledge that sometimes Judges will only award $750 in damages, with costs and fees totaling only a few thousand dollars.

But the ignore strategy does not always go as planned, such as in the case of Dallas Buyers Club v. Scott. 3:15-cv-00730-AC (D.Or.). Possibly banking on a minimum damages, Scott was surprised to find a $5,000 default judgment entered against him (docket-41) together with a request for $1,800 more in fees. Scott hired an attorney and tried to set aside the default arguing he was never served and did not know about the case. (docket-54)

Defaults are often set aside as a matter of course, and often by agreement.   But in this case Dallas Buyers Club opposed setting aside the default. (docket-62) Scott replied and added the argument that at the time of the infringing activity he was not even living at the address. (docket-65)

In response, the Judge wrote in total:

Document Number: 68(No document attached)
Docket Text:

ORDER: DENYING Defendant’s Motion to Set Aside Default Judgment [54]. “If a default judgment is entered as the result of a defendant’s culpable conduct, however, [the Court] need not consider whether a meritorious defense was shown, or whether the plaintiff would suffer prejudice if the judgment were set aside.” Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988) (citation omitted). “Defendant’s conduct is culpable if he has received actual or constructive notice of the filing of the action and intentionally failed to answer.” Id. Defendant was aware of potential litigation in October 2014, as he called Plaintiff’s counsel, and he admits to receiving a notice of default in December 2014. I find that he received at least constructive notice and therefore his failure to answer or otherwise defend was culpable conduct. As such, I DENY the Motion to Set Aside the Default Judgment. Defendant’s response to the Motion for Attorney Fees and Costs [44, 43] is due August 22, 2016. Ordered by Chief Judge Michael W. Mosman. (dls)

The Magistrate assigned the case then followed with:

Document Number: 69(No document attached)
Docket Text:

SCHEDULING ORDER by Judge Acosta – In light of the fact that defendant filed a motion to set aside default and default judgment (#54) and that motion being denied by Order (#68), which was filed on 8/2/16, the court still must address plaintiff’s Bill of Costs [43] and Motion for Attorney Fees and Costs[44]. Accordingly, as plaintiff had to prepare further briefing in response to the motion to set aside default and default judgment, plaintiff may, if it deems appropriate, file supplemental briefing in support of it’s motion for attorney fees and bill of costs by 8/22/16. If plaintiff does not intend to supplement it’s motions, counsel for plaintiff is to notify the court no later than 8/12/16. Defendant’s response(s) to plaintiff’s bill of costs and motion for attorney fees are due by 9/6/16. Plaintiff’s Motion for Attorney Fees [44] and Bill of Costs [43] will be taken under advisement by the court as of 9/22/16. (peg)

Taking the hint, the case concludes with a stipulation and judgment for an additional $7,000 in costs and fees against Scott to address the motion to set aside the default.

The result – Gambling on a $750 default resulted in $12,000 in costs, fees and damages.

 

$35,000 Awarded In Pair of BitTorrent Cases

In a pair of case the Federal Courts has awarded over $35,000 for the download of the motion picture The Cobbler. Both cases were defaults, with the defendants ignoring the proceedings.

Costs and fees added to the award, brings the final sums the defendants will have to pay to $17,437 ($15,000 in statutory damages, $1,950 in attorney fees, and $487 in costs) in the case of Cobbler Nevada v. Jokic, 8:15-cv-2653-T-27TBM, and $18,382 ($15,000 in statutory damages, $2,895 in attorney fees and $487 in costs) in the case of Cobbler Nevada v. Woodward, 8:15-cv-2652-T-33AEP.

As noted by one judge:

Given the widespread practice of illegally downloading movies online, it is likely others besides Woodard will download The Cobbler. Accordingly, damages should be sufficiently high to deter third-party infringement. See Clever Covers, Inc. v. Sw. Fla. Storm Def., LLC, 554 F. Supp. 2d 1303, 1306 (M.D. Fla. 2008) (awarding

$31,000 in statutory damages for each copyright infringed). Statutory damages may be calculated to deter future unlawful conduct. See St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, 573 F.3d 1186, 1205 (11th Cir. 2009) (in calculating damages for willful infringement “deterrence of future violations is a legitimate consideration”) (internal citations omitted). …

* * *

After weighing the applicable factors, this court finds statutory damages of $15,000 is appropriate and is awarded against Woodard in favor of Cobbler Nevada. Id. (awarding $25,000 in statutory damages for using BitTorrent to infringe on a motion picture copyright).

– Cobbler Nevada v. Woodward, 8:15-cv-2652-T-33AEP

The relevant opinions and awards:

15-cv-2653-T-27TBM-Judgment $17,437

15-cv-2653-T-27TBM-Opinion

15-cv-2652-T-33AEP-Judgment $18,382

15-cv-2652-T-33AEP-Opinion

CANADIAN REVERSE CLASS ACTION ANTI-PIRACY SUIT TO PROCEED

Canadian Federal Justice Boswell has ordered the disclosure of subscriber information in a pending reverse class action anti-piracy suit.

The suit involves the users of Rogers Communications internet services who have downloaded films produced by Voltage Pictures, including The Cobbler, Pay The Ghost, Good Kill (Clear Skies), American Heist (Glacier Entertainment) and Fathers & Daughters.

Judge Boswell wrote:

I am satisfied that the Applicants have adduced sufficient evidence, notably in the Affidavit of Daniel Macek, to show that they have a bona fide claim that unknown persons are infringing the copyright in their films. Consequently, they have a right to have the identity of the Subscriber revealed and disclosed for the purpose of pursuing their proposed class proceeding. This right flows from established case law such as that noted above; it does not flow from and is not grounded in any way by the “notice and notice” provisions of the Copyright Act.

The Judge then ordered the release of the subscriber’s name and address.

It is not clear from the order how many infringers may be affected, but it may be this will eventually reach any user of Rogers Communications that pirates any Voltage Pictures produced film.

 

Order: Voltage, et al., v. John Doe 2016-FC-881

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.

Maverick Eye Data Analysis “Sees Through” Dynamic IPs

In a recent case filed on behalf of Glacier Films for infringement of the film American Heist, it is revealed BitTorrent monitor Maverick Eye has developed a system to “see through” dynamically assigned IP addresses allowing the tracking of infringing activity by a single infringer through multiple IP assignments.

As stated in the complaint –

14.  The defendant’s ISP CenturyLink is known to dynamically reassign IP addresses, sometimes assigning an IP address to a party for days, and at other times only for a very short period of time.

15.  Dynamically assigned IP addresses with very short durations may be problematic in identifying a specific infringer as there is only a limited window of data available to the rightsholder in the investigation of the identity of the infringer.

16.  While the identity of the subscriber is readily ascertainable even if only an instant of infringing conduct is observed, limited data creates a greater burden for a rightsholder in using subscriber data to correlate with observed infringer data to identify a specific liable infringing party who acted through the IP address of the subscriber.

17.  To assist in overcoming this issue, plaintiff’s investigator Maverick Eye, UG has developed technology to identify other IP addresses also likely assigned the same subscriber and therefor used by the same defendant.

18.  By expanding the window of known activity associated with a singular defendant across several IP addresses plaintiff is able to use a broader pool of observed activity to assist in identifying the actual infringer and liable party.

The complaint identifies 6 IP addresses all assigned to a single defendant and seeks statutory damages and costs and fees.

 

Copy:  Glacier Films v. Doe 3:15-cv-02016