Tag Archives: Attorney Fees

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.

 

Paper Fences / Bad Defenses – 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 litigation, there seems to be a growing trend to the use of affirmative defenses which are really just paper tigers, these might be called paper fences. These paper fences are not real defenses, just extra words that someone can throw on a page to justify their bill. Sometimes I wonder if even the people that file them on behalf of their client’s believe the false hope these paper fences represent.

Where these seem to be showing up more frequently are in the BitTorrent copyright cases. There are blogs and message boards where such things get shared and passed around among attorneys, and while everyone likes to share an idea, rarely does anyone share its failure. Someone dreams up an idea that sounds good, then word gets passed around and pretty soon everyone is adding the newest paper fence to his or her filings without paying attention to the rulings of the courts.

Assumption of Risk is one such paper fence that has no place in BitTorrent copyright defense. First, it is good to understand what the defense really means. An assumption of risk defense essentially states the plaintiff is involved in such risky behavior that it is expected that defendant will be reckless, as such the plaintiff accepts a possibility of injury.

Now look at why this does this not belong in a BitTorrent copyright defense or any copyright defense for that matter.

– Assumption of risk first dictates that the defendant injured the plaintiff.   The argument is the plaintiff, whose rights were infringed knew or should have known people would try and copy their work. To its logical conclusion the defendant comes to court and says, “I did it, but they should have expected me to do it.”  To allow an assumption of risk defense in copyright law would negate all copyright law.

– Assumption of risk is only valid against reckless conduct. A defendant will still be liable for any willful conduct. In BitTorrent infringement there is no reckless conduct. A defendant does not accidentally download a torrent file. All BitTorrent copyright infringement is willful.

There are other reasons, but suffice it to say assumption of risk has no place in copyright infringement cases and is nothing more than a paper fence that sounds good enough only to be sold to client to justify a bill. Just a little research reveals that assumption of risk has never prevailed as a copyright defense. As Judge Hegerty recently ruled, “Because an “assumption of risk” defense does not apply to copyright infringement claims, this defense cannot succeed as a matter of law and should be stricken.” Malibu Media, LLC v. John Butler, 1:13-cv-02707, (D. Col. Aug. 13, 2014).

As I review these cases look for future notes on other paper fences that often show up in BitTorrent Copyright cases including: Failure to State a Claim, De Minimis Infringement, and the counter claim of Non-Infringement, all of which seem to be making the rounds and do little more than run up costs and fees.

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

For the full opinion of Judge Hegarty cited above: Malibu Media, LLC v. John Butler, 1:13-cv-02707, (D. Col. Aug. 13, 2014).

Overzealous Defendants Ordered to Pay

The recent Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014) case is often held out to be a victory in the fight against patent trolls or people being sued for patent infringement.  But patent trolling is turning out to be one of those things like voter fraud.  Yes it happens, but it seems that for all the hype the actual problem is nominal compared to the attention it gets.

In an interesting turn of events, in the recent case of Romag Fasteners, Inc. v. Fossil, Inc., et al., the Octane Fitness decision ended up helping a patent rights holder filing suit against an infringer.

Romag Fasteners makes magnetic snaps and fasteners which were used by Fossil to manufacture handbags.   Romag owned a relevant patent and trademark.  Fossil was caught using counterfeit fasteners, some of which even carried the trademark and the patent number, and a suit followed. However, Fossil did not wish to admit to liability and put on a vigorous defense throwing everything it could at Romag.  Despite a notable fight, the simple facts were Fossil was caught “red-handed” and at the end of the case, “the Court concludes that Defendants’ pursuit of its indefiniteness invalidity defense, and its failure to formally withdraw its remaining invalidity defenses until after the close of evidence weigh in favor of an award of fees in this case.”

In other words, trying to enforce a bogus patent will result in an award of costs and fees for a defendant, and so too will raising pointless defenses that merely burden the parties and case.

Full text of opinion: Romag Fasteners, Inc. v. Fossil, inc. et al D. Con. 3:10cv1827, August 14, 2014