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Copyright Trolling For Dummies: Wiley Gets Default Judgment

from the books-not-to-buy dept

A little over a year ago, we noted that large publishing house John Wiley (also the plaintiff in the Kirtsaeng case that seeks to wipe out First Sale rights on many goods) was jumping into the copyright trolling game by suing a bunch of people for supposedly sharing digital copies of the company's "For Dummies" books online (though unlike other trolls, at least Wiley tried to target people who were actually in the same jurisdiction: New York). In typical copyright trolling fashion, the company was seeking that people pay up, but a few apparently ignored the whole thing, leading Wiley to score a default judgment against them. Default judgments are generally meaningless in terms of having a wider impact. It's what happens when the defendant ignores the lawsuit, and most courts just give the plaintiff everything they want (though they don't have to) and leave it to the plaintiff to figure out a way to collect.

In this case, the court has issued default judgments against Tammy Roberts and Fred Burgos. It looks like the case went more or along the lines of how copyright trolls would like: the judge allowed the subpoenas, and a few months later, Wiley amended the complaint to name names based on what it learned from the subpoenas issued to ISPs. And... just before anything else was scheduled to happen Wiley magically dismissed most of the defendants (meaning they paid up). The two exceptions were Burgos and Rogers. Wiley insists it properly served both of them, and they both ignored it -- and now the court says they need to pay $7,000 -- split up as $5,000 for copyright infringement and $2,000 for trademark infringement. This is exactly what Wiley asked for. The judge just took what they asked for and accepted it, which is unfortunately common in default judgment cases.

The trademark claim here seems especially bizarre and it's unfortunate that the judge just granted the default judgment. For it to be a trademark infringement, there needs to be a "use in commerce," and it's unclear how posting something online could be seen as a use in commerce if there was no commercial aspect to it. In the grand scheme of things, these rulings mean very little, since they're default judgments, but they'll likely be used by copyright trolls to try to justify their own actions going forward.




Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Jan 4th, 2013 @ 4:46pm

    I feel you're downplaying this too much. Any ammo in the copyright troll bag of tricks is bad ammo. Saying "It's a default judgement, don't worry about it" over and over again doesn't mean that it's not a statement on how the case was handled.

    In other words: While it's not saying that Wiley is 'Right', it is saying that they are 'Not Wrong'. Which is just as bad.

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Jan 4th, 2013 @ 5:53pm

    For it to be a trademark infringement, there needs to be a "use in commerce," and it's unclear how posting something online could be seen as a use in commerce if there was no commercial aspect to it.

    It's not unclear if you post it on a site which receives ad revenue, accepts donations or offers subscriptions. That is all commerce. And as that particular work is part of the sites general offerings it meets the definition.

     

    reply to this | link to this | view in thread ]

  3.  
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    Mike Masnick (profile), Jan 4th, 2013 @ 6:05pm

    Re:

    It's not unclear if you post it on a site which receives ad revenue, accepts donations or offers subscriptions. That is all commerce. And as that particular work is part of the sites general offerings it meets the definition.

    That would only apply to the site offering the download. Not to the uploader. So, no.

     

    reply to this | link to this | view in thread ]

  4.  
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    Anonymous Coward, Jan 4th, 2013 @ 7:17pm

    The use in commerce rule has been destroyed by every court in the land, since the farmer during the depression.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jan 5th, 2013 @ 8:29am

    "Wiley insists it properly served both of them, and they both ignored it"

    Does the court require proof? And in what form?
    One would think this requires being served, where the process server has to seek proof of identity and then provide proper notification to said individual in writing.

    I read some time ago that a court (do not recall where) allowed a person to be served via facebook - this is a bad idea. I did not see a follow up on that particular story.

    So, if a troll fools the court into believing they properly served an individual then they stand a good chance of hitting default ruling pay dirt while the mark is totally in the dark until a collection agency starts ragging their ass. Brilliant!

     

    reply to this | link to this | view in thread ]

  6.  
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    Ophelia Millais (profile), Jan 5th, 2013 @ 9:32am

    This is the second such default judgment obtained by Wiley. They got one back in July as well:

    http://torrentfreak.com/7000-fine-for-sharing-wordpress-for-dummies-on-bittorrent-120702/

    That case started out as Wiley v. Does 1-27 filed in Southern New York. One of the Does tried to get the ISP subpoena quashed and the defendants severed, but the judge rejected their arguments. Wiley used this as ammo in their argument against Verizon's refusal to hand over subscriber identities in three of their other mass lawsuits. Any idea what ever happened with that?

    The case was then pared down to four named defendants and moved to Western New York. One didn't respond and got a default judgment against them for $7000, split up the same way as in this case. The docket shows that two of the other defendants were dismissed and that one of those two settled. The remaining one started to fight it, but it's not clear what happened; all I see on the docket is that Wiley's lawyer canceled a post-discovery conference. I'd like to know what happened, if anyone cares to comment further...

     

    reply to this | link to this | view in thread ]

  7.  
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    Sabrina Thompson (profile), Jan 5th, 2013 @ 1:45pm

    I hope copyright law changes soon and for the better and just go away completely. We should have laws fair and just that prevent immorality and not give comapines monopolies over a creative idea. I think we should let the government know what the coomon people think so they stop listening to greedy "trolls" I started a page on "Face book" called Abolish the "Copyright Monopoly".

    2 petitions I recommend
    https://petitions.whitehouse.gov/petition/shorten-excessive-copyright-terms/XMc72zjc

    h ttp://wh.gov/UIW2

    I think the people should let the government know what we think of stupid copyright laws.
    If a lot of people petitioned the government or if everyone wrote an email to their Congressman or woman trying to change the copyright than maybe the law would change and we won't ever hear of copyright trolls suing again.

     

    reply to this | link to this | view in thread ]


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