Paper Fences / Bad Defenses II – de minimis copying

A part of a series of notes exploring BitTorrent copyright defenses that sound good, but do little more than churn or run up a bill. See Part One: Assumption of Risk

In Chinese they have a phrase zhilaohu (紙老虎) which translates to paper tiger. This phrase stands for something that seems fierce and powerful, but is really no more threatening than a piece of paper. The paper tiger is about imagery and illusion that is only meant to fool the gullible.  In the context of false defenses raised in response to claims, I call such defenses paper fences.

A stock or form paper fence defense that shows up in many of the answers filed both by attorneys and people appearing on their own (pro se) is the de miminis act, or claiming that the amount that was copied was less than the whole or so small that is does not matter and there is no violation.  This sounds good, but on analysis, fails in the realm of BitTorrent copyright claims.  Most significantly, a de minims defense starts off by essentially stating, “I did it but….”

First, a brief review of what constitutes a de minimis act: A de minimis act is one that is so minor as to be inconsequential. This sounds like a good thing to say if you want to argue you only copied a little bit of a movie. But with an understanding of what it means and how it is used in the law the “paper” aspect of this defense becomes apparent. Traditionally de minimis is used for things like in the context of how long a defendant can be detained in a traffic stop, such as to ask one or two more questions, making a short delay a de minimis length of time. United States v. Stepp, 680 F.3d 651, 662 (6th Cir. 2012). Or in the case of a claim of littering when the act involved two matches. People V. Feldman, 342 N.YS.2d 956 (N.Y Crim. Ct. 1973). It is also a standard applied pollution or contamination regulations where the contamination is so minor as to be a non-issue, especially in light of new technology that allows the detection of just a few molecules. Ober v. Whitman, 243 F.3d 1190 (9th Cir., 2001).

But certain matters are often exempt from de minimis exceptions, and these include things like use of excessive force claims or civil rights violations. Wilkins v. Gaddy , 559 U.S. 34, 130 S. Ct. 1175 (2010); Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011).

To the extent de minimis has been applied in the context of copyright, it has generally been in the analysis of similarity, or as a component of fair use. These have been identified as copying that has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, known as trivial copying, and as might be relevant as a component of a “fair use” defense. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 74-75 (2d Cir.1997).

In essence, the de minimis defense is applicable when the question is how similar the copy might be from the original, such as how much Song-A sounds like Song-B, or as one part of the “fair use” defense, which had a multi-part analysis that includes the quantitative amount copied as one of the factors. (Fair use is a whole other issue, and for other reasons beyond this note similarly not applicable to BitTorrent copyright infringement.)

In the context of BitTorrent, a de minimis or “partial copy” assertion are simply not valid defenses. As the U.S. Supreme Court held, “[A] taking may not be excused merely because it is insubstantial with respect to the infringing work…. `[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.'” Harper & Row v. Nation Enters., 471 U.S. 539, 565, 105 S.Ct. at 2233, quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.1936). Thus, there is no de minimis (or the like) defense to BitTorrent infringement.

Granted, a de minimis type argument may be applied to argue for the statutory minimum of $750.00 in damages, but this is not an affirmative defense to liability. And the costs to raise the defense in an answer and deal with the associated motions will likely be thousands of dollars, paid for by the defendant.

As a reminder – The defense to a BitTorrent copyright infringement claim is the defense that the defendant did not do it and was not involved in any way. The rest is often just paper fences and, “a tale told by an idiot, full of sound and fury signifying nothing.” – Macbeth.


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