Category Archives: Uncategorized

Judge Orders Defendant To Stop All Piracy

Judge Anna J. Brown recently ordered a Defendant to stop all use of “BitTorrent or the Internet for copying or downloading content in violation of U.S. copyright law.” Other findings included the defendant, “willful, intentional, and in disregard of and indifference to Plaintiff’s rights, and such conduct caused harm to Plaintiff and deprived Plaintiff of income.”

In addition to the order and injunction, the Judge also awarded the Plaintiff $7,500 “to compensate the Plaintiff and to provide notice to others as a deterrent.”

Case: PTG Nevada v. Wilson, 3:15-cv-2017-BR (D.Or. Sept. 15, 2016).

3:15-cv-2017-BR Order and Judgment

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

$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

Malibu Media v. Tashiro, et al. : $21,000 Damages, $199,000 In Costs And Fees

The long running case of Malibu Media v. Tashiro is one step closer to being closed today with Malibu Media being awarded $199,040.53 in costs and fees. Previously Malibu Media was awarded $21,000 in damages.

The case involves the BitTorrent download of 28 Malibu Media films. After long denying any involvement, the Tashio’s were revealed to have committed perjury and spoliation, the destruction of evidence. As per the Findings and Recommendations:

Here, the Court finds by clear and convincing evidence that Defendants have engaged in a similar pattern of misconduct. Defendants spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith. They lied to the opposing party; they withheld the existence of material evidence; and they deleted potentially damaging computer files the very night before they were to relinquish such files for discovery. Just as in the cases cited above, this extensive pattern of conduct warrants the harshest of sanctions, and the Magistrate Judge accordingly recommends that the Court enter default judgment against both Defendants.

May, 18, 2015 Findings and Recommendations.

The Court then entered a default judgment in favor of Malibu Media in the amount of $21,000 on November 24, 2015.

After significant further briefing and opposition by the Tashiro’s, on August 2, 2016, the Court went on to award Malibu Media and additional $199,040.53 in costs and fees.

The relevant documents:

13-cv-00205 Malibu Media v. Tashiro Sanctions Order

13-cv-00205 Malibu Media v. Tashiro $21,000 Judgment

13-cv-00205 Malibu Media v. Tashiro $199,040.53 Fee Award

 

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

Respect the Copyright : $5000 Default Damages

A recent default judgment from Chief Judge Mosman out of the District of Oregon states parties that ignore copyright claims may be facing stiffer penalties.

In Automata Productions v. Sperry, Oregon 3:15-cv-02283-MO, Chief Judge Mosman writes:

Statutory damages pursuant to 17 U.S.C. § 504 are awarded to plaintiff in the amount of $5,000 to give the statute full force and effect and indicate to the general public that plaintiff’s claims and these proceedings should not be disregarded or ignored.

Whatever else Mr. Sperry may be, he is now a part of a message to the public that copyright violations are to be taken seriously.

The full text may be found at:  USDC Oregon 3:15-cv-02283-MO Judgment and Order

 

University of Houston Takes Bold Step To Fight Piracy

In an effort to fight BitTorrent piracy and network abuse the University of Houston has announced that it will no longer allow BitTorrent traffic on its Wi-Fi network and may extend the ban to wired networks.

The “fix” is apparently quite simple and it is likely other major institutions will follow.

A full copy of the announcement:

Untitled_UH_Page_1

Sharing Internet With Neighbors A Felony?

In the most recent iteration of U.S. v. Nosal the 9th Circuit Court of Appeals has held that using someone else’s password beyond the system provider’s authorization is a felony under the CFAA. (18 U.S. Code § 1030)

This is being reported as it might apply to things like Netflix accounts, commonly (though improperly) shared. But this opinion has applications far beyond things like Netflix, as it goes to just about any service or access that might be provided, including basic residential internet service.

As noted in the dissent by Reinhardt:

This case is about password sharing. People frequently share their passwords, notwithstanding the fact that websites and employers have policies prohibiting it.

So what happens when you share you Internet service? Arguably sharing internet service in violation of the terms of service is now a felony.

As noted by the court:

The key section of the CFAA at issue is 18 U.S.C. Sec. 1030(a)(4), which provides in relevant part:

Whoever . . . knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value . . . shall be punished . . . .

An examination of the terms of service for a common internet service provider (Time Warner) makes clear:

Your Right to Use our Services and Property is Limited

d) Personal, Non-commercial Use Only. The Services and Software are for your reasonable personal, non-commercial use only… You may not share our in-home Services or related Software with any person who is not a member or guest of your household or to persons outside your premises. You may not enable any person who is not a member of your household to access our out-of-home Services or related Software (for example, by providing them with your TWC ID and password).

This is further clarified:

(f) Theft of Service. If you knowingly access Services that you have not paid for, enable others to access Services that they have not paid for, or damage or alter our Equipment (or use Customer-Owned Equipment) in order to do so, you will have breached this Agreement and possibly subjected yourself to statutory damages, fines or criminal charges. Only TWC may service Customer Use Equipment. You will not allow anyone else to open, take apart or modify Customer Use Equipment.

Reference: https://help.twcable.com/twc_sub_agreement.html#section3

In other words – you are authorized to allow others in your home to use your internet service, but once they leave your home the authorization is revoked opening the door to CFAA liability.

So before you share your internet service with neighbors, keep in mind this may now be a felony under the CFAA.

But this should not be a surprise as most states have laws in place that already make theft of services criminal. Such as Texas Penal Code § 31.04:

(a) A person commits theft of service if, with intent to avoid payment for service that the actor knows is provided only for compensation:

(1) the actor intentionally or knowingly secures performance of the service by deception, threat, or false token;

(2) having control over the disposition of services of another to which the actor is not entitled, the actor intentionally or knowingly diverts the other’s services to the actor’s own benefit or to the benefit of another not entitled to the services;

(3) having control of personal property under a written rental agreement, the actor holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals;  or

(4) the actor intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make full payment after receiving notice demanding payment.

A full copy of the Nosal opinion may be found here: U.S. v. Nosal, 14-10037 (9th Cir. July 5, 2016)

Copyright Office 2016 White Paper on Remixes, First Sale, and Statutory Damages

The Copyright Office has released its 2016 White Paper to address some of the issues associated with remixes, the first sale doctrine and statutory damages with a focus on the interaction between copyright and modern technology, namely the Internet.

What the White Paper is: A review of some of the talking points of parties interested in the topics with some recommendations for possible improvements in the law and the enforcement of copyrights in the United States

What the White Paper is not: Law or policy or a final draft of any law or policy.

What the White Paper is for: Generating further discussion on ways to improve the Copyright system in the United States.

Key Points and Recommendations:

1) Remixes

Recognizing the value of remixes, the White Paper recommends:

  • The development of negotiated guidelines for providing greater clarity as to the application of fair use to remixes;
  • Expanding the availability of a wider variety of voluntary licensing options; and
  • Increasing educational efforts aimed at broadening an understanding of fair use.

2) First Sale Doctrine

In addressing the First Sale Doctrine in the modern Internet Age, the While Paper Recommends:

  • No changes in the law related to First Sale Doctrine;
  • Improved consumer education and making sure consumers understand licensing terms and making sure consumers understand the limits of leased and licensed content.

3) Statutory Damages

In addressing the growth of copyright litigation and online enforcement actions the White Paper makes four recommendations:

  • Incorporate into the Copyright Act a list of factors for courts and juries to consider when determining the amount of a statutory damages award;
  • Implement changes to the copyright notice provisions that would expand eligibility for the lower “innocent infringement” statutory damages awards;
  • In cases involving non-willful secondary liability for online services offering a large number of works, give courts discretion to assess statutory damages other than on a strict per-work basis; and
  • Creating of a “fast track” adjudication of smaller copyright claims through a centralized copyright office tribunal.

Some themes in the White Paper are that many of the perceived problems with the current copyright system are due to misunderstandings and misconceptions on what is and is not allowed. These are best addressed with promoting education, consistency and transparency, which are partly addressed in the listed factors suggested for the evaluation of copyright damages which include:

(1) The plaintiff’s revenues lost and the difficulty of proving damages.

(2) The defendant’s expenses saved, profits reaped, and other benefits from the infringement.

(3) The need to deter future infringements.

(4) The defendant’s financial situation.

(5) The value or nature of the work infringed.

(6) The circumstances, duration, and scope of the infringement, including whether it was commercial in nature.

(7) In cases involving infringement of multiple works, whether the total sum of damages, taking into account the number of works infringed and number of awards made, is commensurate with the overall harm caused by the infringement.

(8) The defendant’s state of mind, including whether the defendant was a willful or innocent infringer.

(9) In the case of willful infringement, whether it is appropriate to punish the defendant and if so, the amount of damages that would result in an appropriate punishment.

Of particular note, the While Paper rejects adjusting statutory damages of $750 – $150,000 per infringement, even for online personal use such as BitTorrent, but does propose that the statute should specifically include the nonexclusive factors in evaluating any such award, but notes individual file sharers may be properly liable in some cases for a full $150,000 damages award. As stated:

With respect to file-sharing, statutory damages must take into account not merely the defendant’s personal use, but his or her acts in uploading and distributing copies to potentially numerous recipients. And while statutory damage awards of $150,000 per work are rare, there may be cases, including in the context addressed in these proceedings, where such awards are justified due to the need to deter and punish willful infringement.

The White Paper also rejects action to address claims of litigation abuse by so-called “copyright-trolls,” stating:

… the Task Force heard concerns about so-called “copyright trolls” that use the threat of statutory damages to obtain settlement fees from alleged infringers. Some have suggested that Congress consider recalibrating statutory damages specifically to discourage misuse of the system. We do not recommend such changes at this time.

In sum, the biggest problems with the copyright system appear to be based on misunderstanding and confusion, which are best addressed through transparency and education.

 

Full text of the report: White Paper on Remixes, First Sale, and Statutory Damages (2016)