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:


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.


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)

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.

BitTorrent Defendant Counterclaims Struck – Costs and Fees Awarded to Plaintiff

In a case of an aggressive defense brought against Voltage Pictures and Dallas Buyers Club for their enforcement of their rights, the court has sided with Voltage and dismissed the defendant’s counterclaims, dismissed six of the seven affirmative defenses and awarded Voltage costs and fees for the overly aggressive stance taken by the defendant.

The complaint filed claims the defendant downloaded and distributed the motion picture Dallas Buyers Club through BitTorrent. Plaintiff Dallas Buyers Club seeks to enforce its copyrights in the motion picture and Voltage Pictures joins in the case asserting its state trademark rights.  In the answer filed the defendant asserted two counterclaims, one for a declaratory judgment of non-infringement and a second for abuse of process.  The court dismissed both counterclaims and awarded Voltage costs and fees.

The defendant also asserted seven counterclaims, including:

  1. Failure to state a claim.
  2. Misuse of copyright.
  3. Unclean hands.
  4. Damages sought are excessive.
  5. Plaintiffs have failed to join one or more indispensable parties to this action.
  6. Plaintiffs have improperly joined parties.
  7. Third party conduct.

The court struck six of the seven affirmative defenses as improper.  As statutory damages sought may range from $750 to $150,000 and have not been determined, the court left open the possibility that an eventual damages award may be excessive.

The full text of the opinion: Voltage v. Blake, 3:14-cv-01875-AC, (D.Or., Dec. 17, 2015)

Court finds Defendant willfully, intentionally and maliciously infringed 59 of Plaintiffs registered copyrights

Case: Malibu Media v. Doe, 1:14-cv-10155 (SDNY, Dec. 9, 2015)

Because the opinion says everything that needs to be said:

Plaintiff, Malibu Media, LLC, sued John Doe Defendant for using his computer, the internet and the BitTorrent protocol to download and distribute 59 of Plaintiffs registered copyrighted works. Defendant denied the allegations and argued that Plaintiff brought a frivolous case against him. During discovery, Plaintiffs computer forensic expert, Mr. Patrick Paige, examined Defendant’s computer. Mr. Paige’s report concludes Defendant used computer file destruction software immediately prior to the time he produced his computer over for forensic imaging and examination.

. . .

In late November, 2015, Defendant produced certain travel documents which he claimed proves that he was not in his home when the infringement was occurring. The day after receiving these documents, Plaintiff filed a Motion For Leave to Take Immediate Discovery. That Motion set forth facts strongly suggesting the dates on the travel documents were intentionally altered.

The Court granted Plaintiffs Motion. Thereafter, Plaintiff propounded third party subpoenas to various travel companies. In the interim, prior counsel withdrew and Defendant retained new counsel. Shortly after retaining new counsel, Defendant produced the unaltered travel documents proving he was at home when the infringement was occurring but was not at home when infringement was not occurring.


Defendant admits he committed four (4) wrongs: (a) infringement; (b) falsely denying the infringement; (c) altering evidence; and (d) unnecessarily causing Malibu to incur attorneys’ fees and costs. The Court takes note that Defendant’s apology and admissions only came after there was no doubt that Defendant could not escape the consequences of his conduct.


Based on the foregoing, the Court finds Defendant willfully, intentionally and maliciously infringed 59 of Plaintiffs registered copyrights in violation of Plaintiffs copyrights as set forth in 17 U.S.C. § 106. Consequently, a substantial penalty sufficient to punish Defendant and deter similar conduct by other defendants is warranted.


Via teleconference on December 3, 2015, Defendant’s counsel advised Plaintiff that

Defendant is in an emotionally fragile state. In response, Plaintiff advised that it does not wish to cause Defendant so much stress that he breaks. At a status conference held on December 8, 2015, Plaintiff admitted it wants Defendant to be punished but stated that it does not want the punishment to be so severe that Defendant is unable to move forward or recover from this experience. With this as background, at the status conference, the parties also stated that they may be able to reach a settlement. They each agreed to work toward that end in good faith. The Court advises the parties that if this matter proceeds Plaintiff would be entitled to substantial statutory damages and likely its reasonable attorneys’ fees. Accordingly, Plaintiff shall advise the Court by January 8, 2016 if the Parties have been able to reach a settlement or if further proceedings will be necessary. If a settlement is reached it shall be filed with the Court. Further, given the nature of the conduct in this matter, any settlement will be subject to the Court’s approval.

8th Circuit Court of Appeals: Suing an IP address subscriber is reasonable

In the case of Killer Joe Nevada v. Leaverton, Killer Joe Nevada, LLC sued internet subscriber Leigh Leaverton for infringement under the Copyright Act for the download and distribution of the motion picture Killer Joe. When on investigation it appeared Leaverton was only the subscriber who paid for the Internet service and not the infringer, Killer Joe moved to voluntarily dismiss its suit. Leaverton objected and demanded her attorney’s fees. The court dismissed the suit and denied Leaverton’s requests for attorney’s fees.

Leaverton appealed and the key issue on appeal was whether or not it was reasonable for a subscriber to be sued solely for being the party responsible for the internet service used by the infringer and whether the District Court abused its discretion in denying her attorney fees.

As per the Court of Appeals:

[Leaverton] argues that the district court erroneously ruled it was reasonable and not frivolous for Killer Joe Nevada to sue the subscriber for the IP address. Leaverton believes it is unreasonable for a Copyright Act plaintiff to sue the subscriber without first investigating whether the subscriber was responsible for the infringement.
          . . .
Leaverton cites no binding authority that a Copyright Act suit based on the infringer’s IP address is frivolous or unreasonable. The district court thus did not abuse its discretion by concluding that Killer Joe Nevada’s acts were reasonable.
          . . .
…because Killer Joe Nevada promptly dismissed its lawsuit once it learned Leaverton was not the infringer, Killer Joe Nevada had proper motives to sue the subscriber.

If nothing else, this case stands for the principal that providing internet service alone, though it may not make you liable for infringing activity, reasonably exposes you to potential litigation.

Full Text: Killer Joe Nevada v. Leaverton, No. 14-3274, 8th Circuit Court of Appeals, Dec. 4, 2015

Infringer Receives Lifetime Ban From BitTorrent

In an Order issued in the District of Oregon on Nov. 5, 2015, an infringer has received an lifetime ban forbidding his use of “BitTorrent or the Internet for the copying or downloading of unlicensed copyrighted content.”

The order states:

(3) Defendant Justin Klemmer’s conduct has been willful, intentional, in disregard of and indifferent to plaintiff’s rights with the intent to deprive plaintiff of income and cause plaintiff harm.

(4) Statutory damages are proper to both compensate the plaintiff and provide notice and to act as a deterrence to others. Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 500 (!st Cir. 2011), cert. denied, (U.S. May 21, 2012). To compensate the plaintiff and provide proper notice and deterrence to others, statutory damages in the sum of $10,000 are awarded plaintiff.

(5) A permanent injunction is ordered enjoining defendant from infringing plaintiffs rights in their motion picture, including without limitation using the internet to reproduce, distribute or copy plaintiffs motion picture, and further directing defendant to destroy all unauthorized copies of plaintiffs motion pictures and to delete all software used to make or distribute those copies or exchange unlicensed content using the BitTorrent protocol.

(6) Defendant is further enjoined from using BitTorrent or the Internet for the copying or downloading of unlicensed copyrighted content.

Plaintiff was also awarded costs and fees to be determined.

The case is Dallas Buyers Club v. Klemmer, 6:15-cv-00612, D. OR. Nov. 5, 2015.