Category Archives: Uncategorized

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

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

 

Denmark – Court Awards Damages In Denmark BitTorrent Action

NJORD Law firm has just received the first favorable decision from the Danish courts in a bittorrent action for the download of their client’s motion picture.

The judgement for the Rights Holder was granted “based on the case as presented including the evidence submitted”.

The reasoning is short but strong. NJORD Law firm included in their submission all correspondence with the defendant containing the arguments and defenses as well as factual circumstances of the case.

The damages of the claim were set at DKK 5,000 (€ 667) being only a part of a potential bigger claim. The Rights Holder has been granted the full amount as well as interest and also awarded cost of DKK 1,560 (€ 208). The cost alone being higher than NJORDS settlement offer of € 200 and considered high in Danish court practice.

 

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

Canada’s Anti-Piracy Laws Prompting Positive Change

New Notice-and-Notice Regime in the Canadian Context

In 2012, the Government of Canada enacted several new copyright laws aimed at fighting copyright piracy.  A key change was the “notice-and-notice” system, which formally came into force in January 2015 through amendments to the Copyright Act.

The Government designed the notice-and-notice system to discourage online copyright infringement.  The relevant provisions now present in the Copyright Act require Internet Service Providers (“ISPs”) to take action upon receiving notification of alleged copyright infringement from a copyright owner.  Upon receiving such a notice, ISPs are required forward the notice to users whose IP address  has been identified as the source of the alleged infringement. The system also imposes specific requirements for the contents of notices and record keeping.

Since the notice-and-notice system came into force in January 2015, it has been reported that piracy rates among Canadians have actually dropped. While some critics have remained stubbornly reticent to accept the new system, evidence continues to gather in support of its efficacy.

University of Manitoba Students Received 6000+ Notices

A recent story reported by Canada’s national news broadcaster, the CBC, is a perfect example.  Thousands of students at the University of Manitoba received copyright infringement notices forwarded from copyright owners.  The notices related to piracy of textbooks, television shows, music and movies. The University of Manitoba forwarded over 6,000 notices.

This number not only reveals an alarming trend pervasive on Canadian university campuses, it is also indicative of a broader trend in Canadian culture. One prominent copyright enforcement company reported that it sent more than 6 million notices just last year.

These numbers demonstrate that casual copyright piracy has become commonplace and copyright users have become numb to the consequences.  At the same time, the negative effects of widespread piracy are not only felt by individual copyright owners, but by creative industries as a whole.  This year the Government of Canada published the results of a questionnaire conducted as part of  nationwide consultation on “Canadian Content in the Digital Age”.  Responses indicated that most stakeholders considered “creator remuneration” to be the most urgent challenge facing Canadian media industries today.  Likewise, most considered “consumer expectations of free/low cost content” to be the most urgent barrier to Canadian media industries’ success in the future.

As situations such as that reported at the University of Manitoba continue to come to light, it becomes increasingly clear that the notice-and-notice system is prompting positive change.  The system is potentially disrupting the culture of casual copyright piracy that has developed in Canada in the digital age by bringing the problem into the public discourse.  Rights holders not only finally have an new tool to enforce their rights, but more importantly they now have the ability to remind consumers that illegal downloading is, in fact, illegal.

TCYK Case To Proceed in UK; Lawdit Billing Questioned

Defendant’s motion to strike out TCYK’s Claim for Bittorrent downloading denied, Judge ruled for the Claim to proceed to be argued in Court, and summoned Defendant to file their defence.

TCYK LLC brought claims against a wide array of individuals for infringing their copyrights by downloading their motion picture, The Company You Keep. The Defendant of the first case brought to Court, Michael Coyle of Lawdit Solicitors, filed an Application to strike out the Claim out of court, and deemed TCYK’s activities as “speculative invoicing”. The Judge however ended up questioning Mr Coyle on their invoicing.

As part of the Application to strike out the Claimant’s Claim out, Lawdit Solicitors submitted a Statement of Costs for £12,387. However, as the Judge pointed out, Lawdit Solicitors openly advertise their legal services for copyright infringement cases for the sum of £90. Michael Coyle explained that the firm has been funding their efforts against TCYK LLC from donations, yet they were still looking to ‘double dip’. After further questions, the Judge enquired if Mr. Coyle’s client was going to pay the £12,387 cost if the application got was denied. To this, Mr. Coyle failed to answer.

As much as one must appreciate the charitable legal work, be that volunteering or the use solicit of donations to cover costs, we would even should not look past the fact that Lawdit Solicitors are representing pirates, who illegally download content – more simplistically or more simply put, steal films. Nevertheless, one might find it rather ironic that their method of invoicing is being questioned in Court. It is also alarming, that while the service is publically advertised for £90, they are claiming £12,387 in fees. One might therefore wonder if the donations Lawdit has obtained would be handed over to their clients in any assessment of costs should they lose.

We must applaud Lawdit Solicitors for their clever business model. They raise money from donations, only ask for £90 from their clients, however yet claim £12,387 from their opponent. Should they lose, the cost will not be charged to the client – even though there is no legal agreement between Lawdit and their clients in this matter, as Mr. Coyle stated in Court. We would not, however, go as far as to call their invoicing methods speculative, although they are questionable at best.