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

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