Category Archives: Bittorrent

Motion for Default Filed for “The Company You Keep” Copyright Infringement

Failure to respond is almost always the reason behind a default judgment in courts, and this is exactly what happened to Richard Williams when TCYK, LLC filed a motion for default against him for downloading and sharing the motion picture, The Company You Keep, via BitTorrent.

Although 20 defendants were caught downloading the said movie at a specific time and date, Williams was filed with a motion for default for failing to plead or defend as required by law.

REPORT AND RECOMMENDATION

Part of the Report and Recommendation file dated January 8, 2015 says: “Plaintiff seeks $150,000 in statutory damages, $5,101.25 in attorneys’ fees, and $405.01 in costs; Plaintiff also asks that the Court permanently enjoin defendant Williams from infringing, directly or indirectly, Plaintiff’s copyrighted works.”

STATUTORY DAMAGES

The Plaintiff sought damages because “defendant’s conduct was wilful, because a maximum award will deter others, and because Plaintiff and the motion picture industry have suffered real and significant harm.” However, the court still had to determine the proper amount of statutory damages according to different factors.

THE COURT’S CONCLUSION

As a conclusion, the Plaintiff sought a permanent injunction that would “prohibit defendant’s use of the internet to reproduce or distribute Plaintiff’s motion pictures without license or express permission,” as well as to destroy all copies of The Company You Keep downloaded motion picture “onto any computer hard drive or server or transferred onto any physical medium or device in defendant’s possession, custody, or control.” The United States District Court of Ohio (Southern District) also concludes that aside from the statutory damages, the “Plaintiff is entitled to attorneys’ fees and costs, pursuant to 17 U.S.C. § 505, in the total amount of $1,905.01.”

Naming IP Address Subscriber “Objectively Reasonable”

The 11th Circuit Court of Appeals has issued a ruling that naming an IP address subscriber as a defendant is “objectively reasonable.”

In the case of Malibu Media v. Pelizzo the defendant demanded costs and fees after being named in a BitTorrent copyright case. A key issue was whether or not Malibu Media named the defendant in good faith when his IP address was shown to have been the source of notable infringing activity. Later evidence indicated that Pelizzo himself might not be the infringer.   Once it appeared Pelizzo might not be the infringer, Malibu offered to dismiss the case but Pelizzo rejected Malibu’s offer and demanded costs and fees. The District Court denied Pelizzo his attorney fees under the Copyright Act and Pelizzo appealed. The 11th Circuit Court of Appeals upheld the District Court and stated:

We find no abuse of discretion in the district court’s conclusion … that Malibu’s subjective motivation for filing suit was not improper or that the suit was not frivolous… To whomever the subject IP address was subscribed, it is undisputed that a genuinely phenomenal number of films was being downloaded using it. …   Because of the nature of the films, Pelizzo justly was ashamed to be a part of the litigation, but the magistrate judge found no record evidence that Malibu sued him for that reason, and Pelizzo has not presented any such evidence. Using detection methods it had used hundreds of times before, Malibu determined that the IP address apparently assigned to Pelizzo was the vehicle for the infringements and acted accordingly.

We also find no abuse of discretion in the district court’s conclusion that Malibu, up to a point, acted in an objectively reasonable manner and in a manner that served the purposes of the Copyright Act: compensation and deterrence. Contrary to Pelizzo’s assertion, Malibu could not have been expected simply to take his word for the fact that he had not infringed Malibu’s copyrights, given the substantial evidence implicating Pelizzo.

 A ruling that Pelizzo should be awarded $6,815.50, for what the Court called a “knee-jerk” reaction to Pelizzo’s initial demand for fees was not changed, but the court verified that the $24,000 in attorney fees sought by Pelizzo was properly denied.

The case is Malibu Media v. Leo Pelizzo, 14-11795 (11th Cir, 2015)
(S.D. FL. D.C. Docket No. 1:12-cv-22768-PAS)

BitTorrent Litigation: Court Threatens Sanctions Against Vexatious Doe Defendant

Judge Richard A. Jones has had about enough of the boilerplate and Internet sourced self-help Motions to Quash being filed by defendants in Washington and on March 11, 2015 issued an order threating one “Mr. Doe” with monetary sanctions.

Initially this “Mr. Doe” or John Doe No. 4 filed a motion to quash arguing many of the standard boilerplate arguments. The court was not impressed.

[Mr. Doe] asserts that Plaintiff has improperly joined ten “John Doe” defendants in this case. He also asserts (without providing evidence) that he has learned from “prior defendants” that Plaintiff follows up the identification of a Comcast subscriber with “forceful correspondence, persistent phone calls and other methods asking for money to avoid their lawsuit.” He asserts that he has never heard of the Dallas Buyers Club movie and he has never unlawfully downloaded it.

The court rejected the improper joinder arguments and the denial of liability as a basis for quashing the subpoena, and pointed out that allegations of “strong-arm tactics” were without any actual evidence. (“Mr. Doe has not, however, given the court a basis to conclude Plaintiff is actually using those tactics.”)

However, not satisfied, “Mr. Doe” proceeded to file further objections and motions. After a third try, the court had enough and stated:

This is the third motion Mr. Doe has filed targeting the same subpoena issued to Comcast. Just as the court has denied the previous two motions, it denies this one. If Mr. Doe persists in filing motions attacking the subpoena, the court will terminate those motions without further notice. It may also issue an order to show cause why it should not designate Mr. Doe as a vexatious litigant and issue monetary sanctions against him.

As a caution, it appears Judge Jones’ patience with BitTorrent infringers is wearing thin.

The case is Dallas Buyers Club, LLC v. John Does 1-10, W.D. Washington, 14-cv-01819-RAJ.

The relevant orders of the court:

Order Denying Motion 14-cv-01819-RAJ_Doc_16

Order Re Sanctions 14-cv-01819-RAJ_Doc_21

Debunking the Troll Myth

With so much anecdotal evidence, real and serious investigation of the expansion of copyright litigation is hard to come by. But in an article published by Nova Southeastern University in a survey of over 1,500 BitTorrent related cases the author reviews the common defenses asserted, their general inadequacy, and concludes:

To the knowledge of the author, only three BitTorrent cases have gone to trial resulting in a judgment being entered. All three of these cases resulted in a judgment for the copyright owner, with substantial damages being awarded.

* * *

In the end analysis, the author found no cases in which a file-sharing defendant went to trial, and prevailed. The more common theme was a blanket denial, followed by an attempt to destroy the evidence.

The full article is worth reading for anyone who has any interest in this litigation:

Copyright Infringement Litigation Over BitTorrent File Sharing: Truth or Troll?

 

 

 

MISGUIDED BITTORRENT DEFENSES / OHIO AND OREGON MISFIRES

A standard defense in BitTorrent cases is that the defendant is the victim of abuse by the copyright holder and the whole process is nothing more than a shakedown scheme and a fraud on the courts with plaintiffs filing cases and settling for money. But there is a problem with this, and that is that our entire litigation system is based on reasonable people settling most cases and this overlooks the fundamental facts of the case: a copyright claim is premised on the defendant being the bad actor – for the case to exist the defendant must have first stolen from the plaintiff.

This trend of defenses that try to paint the plaintiff as the bad guy in an effort to divert attention from their own copyright theft sounds good to someone looking for an easy way out, but it does not hold up to scrutiny and the courts are shutting this defense down with painful results for some defendants. Thousands of dollars are being spent on these arguments and in the end, the defendants who might have been able to settle their clams for $5,000, have to pay not only their own attorneys thousands more, but as per the copyright law, also have to pay more to the rights holders that brought the case. A bad defense quickly turns a $5,000 case into a $50,000 case, and that is starting to sound like abuse, but for defendants who run up the legal bills, it is self-inflicted.

Two recent cases point this out. One in Ohio and a second in Oregon.

In Malibu v Doe, S.D. Ohio, 14-cv-00821, the defendant tried to assert counterclaims, arguing the copyright holder (Malibu) had committed bad acts and therefore could not enforce its claims and that the claims of Malibu were abusive and brought in bad faith.

As per the opinion –

[Defendant] alleges that Malibu brought the claim to humiliate him and extract money from him. … [but] even if Malibu brought the lawsuit with the intention of settling the case short of litigating it to conclusion, that purpose is not an ulterior motive because many claims are settled. A successful copyright lawsuit would result in money damages, so seeking a settlement by filing a complaint does not qualify as an ulterior motive…[the defendant] does not identify any act committed during the process that was improper …

 In other words, the defendant argued that Malibu was a bad person and that Malibu’s methodology of filing suit and demanding settlements for money was somehow improper. As the court correctly points out, there is not only nothing improper about Malibu’s conduct, but this is exactly how things should work when someone commits copyright theft.

In another recent case, Voltage v. Revitch, Oregon, 14-cv-00301, the defendant argued essentially the same type of thing, but brought in a lot of additional accusations claiming copyright misuse and unfair business practices, raised the “IP address is not a person defense,” and making several accusations related to the investigators and other parties working with Voltage. One of the key elements in the counterclaims of the defendant was an argument that Voltage had an improper claim that the defendant, by paying for Internet service was liable for providing the Internet access to another person who might be the actual infringer.

As per the opinion –

Defendant’s claim seeks to resolve the “continuing threat posed . . . by plaintiffs’ theory that their copyright registration imposes on [defendant] a “duty to police” the internet access he obtains as an Oregon consumer.” As noted above, plaintiffs’ allegations seek to hold defendant liable for alleged willful copying and distribution and do not assert some sort of strict liability. To the extent defendant asserts that plaintiffs have engaged in such conduct with others and that conduct bars enforcement of the copyright against him, the claim stretches the theory of copyright misuse beyond its contours.

. . .

This is not to say the issue of whether defendant is in fact liable for copyright violations engaged in by others may not be litigated, only that defendant may not properly allege a counterclaim for copyright misuse. Accordingly, defendant’s counterclaim for copyright misuse is dismissed.

Both cases support plaintiff’s right to legitimately enforce their copyrights and discard the copyright misuse defense. And in an interesting turn of events, the “IP address is not a person” defense has now been discarded so thoroughly that the courts are recognizing that someone that pays for Internet service may be “liable for copyright violations engaged in by others.”

Relevant court orders:

Malibu v Doe, S.D. Ohio, 14-cv-00821, Feb. 4, 2015

Voltage v. Revitch, Oregon, 14-cv-00301, Jan. 23, 2015

 

A Fatwa Against Piracy In Turkey

Recognizing that piracy is theft and against the teaching of The Prophet Muhammad, the Turkish Directorate of Religious Affairs (a/k/a “Diyanet”*) has issued a position statement that downloading movies, software and the like without license is “haram” or a sin.

“It is not permissible to download unauthorized work or other programs from the virtual world.”

“Wrongful acts [such as piracy] not only usurp the individuals’ rights, but also discourages people who work to create such things from creating new products, turning the matter into a public rights violation in a broader sense. Therefore, anything that has been downloaded through the Internet, software, and products such as books and music is not permitted without the permission of those who created it. ”

 

* The Diyanet is Turkey’s constitutional director of religious standards.

For official commentary from Diyanet: http://www.diyanet.tv/diyanet-ten-internet-fetvasi-/

For the CNN Turkey page on this story: http://www.cnnturk.com/haber/turkiye/diyanet-telif-odemeden-internetten-muzik-ve-program-indirmek-haram.

 

BitTorrent Defendant Tries to Hide Record From Public – Denied

In a BitTorrent-Infringer lawsuits that is advancing to trial, a defendant accused of downloading material has tried to seal portions of the record they would like to keep secret and hidden from the public and been denied across the board.

United States courts have a long tradition of being open keeping with the notion that justice is best administered in the light of day, not hidden from view. The judge noted the public at large has an interest in what happens in any judicial proceedings and that the defendant should not be able to hide matters from the public unless there is “good cause” and the matters to be sealed are “bona fide” confidential matters.

Finding he failed to present any good cause or have any legitimate confidentiality in the documents he wanted to keep secret, the judge denied all requests by the defendant.  The judge has asked the plaintiff Malibu Media and Comcast to comment if they would like any of the matters sealed before the Judge makes the defendant’s filings public.

The case is: Malibu Media v. Harrison, 1:12-cv-01117, Southern District of Indiana.

The opinion may be read here: Order on Defendant’s Motion to Seal, Dec. 23, 2014, Dkt. 297.

Misguided BitTorrent Defenses / Illinois Misfire

A common refrain in many of the BitTorrent litigation cases is “an IP address is not a person.” And this is true. But this refrain is repeated so often that many believe it to be a defense to a claim of copyright infringement. This is false.

What a plaintiff needs in a copyright case is evidence. An IP address may not be a person, but when it is tied to a specific person it is evidence. Unlike a criminal case, a plaintiff does not need evidence “beyond a reasonable doubt” or even “clear and convincing evidence.” A claim for copyright infringement is tried on a “preponderance” of the evidence standard. This means the scales of justice, all things being weighed, tip one way or the other even ever so slightly. For people that might like to think of it in percentages, a preponderance is not 90%, 75% or even 51%, it is more like 50.000001%.

The problem with may defenses in BitTorrent litigation is that defendants, and often their counsel, defend cases like they were defending a criminal case. Defendants often raise arguments supporting a “reasonable doubt.” This is understandable as those accused are being accused of theft, and there are possible criminal repercussions. But this is not the standard for civil copyright infringement claims. A reasonable doubt defense might sound good on TV, and is proper when a defendant is facing jail, but it falls flat in the real world of civil litigation and copyright infringement claims.

One such misguided example can be found in the pending case of TCYK v. Does 1-121, 3:13-cv-3127, C.D. Ill.   In that case a defendant filed a motion to dismiss arguing an IP address alone is not enough and raising the claim that it is possible someone else used his Wi-Fi, that he had neighbors who might have downloaded the movie in question, that the plaintiffs were “copyright trolls,” and many of the other common stock “reasonable doubt” defenses.

This turned out to be a waste of time. The court made clear, “Plaintiff need not conclusively establish that Defendant Gordon was using the IP address” and the motion was summarily denied.

The defendant in question has now been ordered to answer the complaint against him by October 15, 2014.

Relevant documents:

TCYK v. Does 1-121, 3:13-cv-3127, Docket 38 – Motion to Dismiss

TCYK v. Does 1-121, 3:13-cv-3127, Docket 40 – Opposition

TCYK v. Does 1-121, 3:13-cv-3127, Docket 48 – Opinion and Order

Defendant’s Motion to Quash “Demonstrates A Lack of Understanding” of Basic Rules

No Traction With Empty Allegations In Northern District of Illinois

Following the growing trend of judges nationwide, District Judge John W. Darrah has summarily dismissed a defendant’s claims that a subpoena related to a complaint filed for copyright infringement via BitTorrent was part of a “fishing expedition,” a “bogus lawsuit,” and “troll case” for extortion that undermined the judicial process.

The court summarily rejected all of the arguments as hollow and made clear:

The information sought is particularly discoverable, as Plaintiff would “otherwise be unable to maintain . . . litigation, as it has no other way of identifying the defendants.” TCYK, LLC v. Does 1-87, at *2. Any argument that the subpoena should be quashed because the information will not identify infringing parties “demonstrates a lack of understanding of the basic scope of discovery under federal rules… Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” reFX Audio Software, Inc. v. Does 1-111, 13-cv-1795, 2013 WL 3867656 (N.D. Ill. July 23, 2013) (citing Fed.R.Civ.P. 26(b)(1)).

The outcome of this: Due to defendant’s (or their attorney’s) “lack of understanding” the costs and fees associated with this case went up. Defendants who willfully infringe as occurs with BitTorrent infringement, pay all costs and fees for both sides. As such a defendant is now likely going to have to pay not only for their own “lack of understanding,” but they will likely have to pay the costs and fees of the plaintiff as well.

Worth reading for an appreciation of exactly what is going on are the Motion to Quash (Docket 15), the Opposition (Docket 19) and the Memorandum Opinion and Order of the court (Docket 26.)

14-cv-1381 – Docket 15 : Motion to Quash

14-cv-1381 – Docket 19 : Opposition to Motion to Quash

14-cv-1381 – Docket 26 : Memorandum Opinion and Order

Malibu Media v. Does – The Maryland “Battle Royale”

The drama of BitTorrent culture with its free and open exchange of information through the Internet regularly buts heads with fundamental copyrights. There are those that want the Internet to live up to the promise of being the most complete free library in the world, and those that oppose their works, mainly movies and music, being pirated or stolen though online technologies.

In this conflict there has been a recent showdown in Maryland. With a large number of cases pending before the Maryland courts, several were consolidated before a three-judge panel to hear both sides. Much was made of this by the defendants, (presumably being those caught pirating movies) that oppose copyright enforcement. The arguments were comprehensive, exhaustive, and at times downright speculative. It was clear the three-judge panel was taking this seriously and this was going to be a bellwether event where all the allegations of improper enforcement would have their day and “the light of truth” would shine through.

Those defending against copyright enforcement claims were making a number of very aggressive arguments including:

  • An IP address is not proper or sufficient to identify an infringer.
  • The plaintiff Malibu Media had engaged in abusive tactics.
  • Malibu Media used investigation techniques that were flawed.
  • The investigators used by Malibu Media were improperly hired on a contingency fee.
  • Malibu Media engaged in deception and fraud.
  • Malibu was involved in champerty (improper contingency fee arrangements).
  • Various other speculative arguments and claims.

In the end the three-judge panel took evidence and heard arguments and found the claims of those fighting enforcement were either improper or simply without basis.  The court specifically found that even if some of the allegations, such as experts working on a contingency agreement were true, such agreements were not improper in these cases. In short the court found, “These issues have little relevance…”

As to abuse, the court found the allegations without merit and, “To the best of this Court’s knowledge, Malibu has complied with these procedures and this Court is unaware of any allegations of abuse in this district.”

The court went on to state:

The subscribers’ other arguments in their motions are either premature or far too speculative for the Court to consider at this stage in the litigation. For example, each subscriber argues that Malibu is engaged in a course of deception and fraud. The subscribers rely heavily on parallels to Ingenuity 13, LLC v. John Doe, No. 2:12-cv-8333-ODW(JCx), 2013 WL 1898633 (C.D. Cal. May 6, 2013). However, Ingenuity 13 involved actual and documented fraud, misrepresentations to the Court, and clearly improper activity. Although the subscribers try to allege similar improprieties on Malibu’s part, there is not presently before the Court any indication that Malibu has done anything improper or fraudulent in these cases.

In sum, in the promoted “Battle Royale” in Maryland, defendants threw everything at the wall and nothing stuck.  The judges ruled the cases would go forward.

Consolidated cases:

Malibu Media, LLC v. John Doe, 14-cv-00223-MJG, (D. Md., Sept. 18, 2014)

Malibu Media, LLC v. John Doe, 14-cv-00257-RWT, (D. Md., Sept. 18, 2014)

Malibu Media, LLC v. John Doe, 14-cv-00263-PWG, (D. Md., Sept. 18, 2014)

 

Consolidated opinion of the three-judge panel: Malibu Media v. Does – Maryland Bellwether

 

Edit / Update:

A similar outcome in a single party case from Michigan:  Malibu Media v. Pontello, 13-cv-12197 (E.D. Mich, July 16, 2014)