IP Address Snapshots Not Sufficient Evidence To File Infringement Suit; Prenda Lawyer Faces Sanctions

Copyright

from the copyright-trolling-smackdown dept

It looks as if Judge Otis Wright is about done humoring Brett Gibbs and Prenda Law/AF Holdings/Ingenuity 13 LLC’s continued legal asshattery. In a lengthy order that reads more like a smackdown, Wright attacks Gibb’s abuse of the legal system and thoroughly dismantles his so-called “business model.”

First, Wright takes on the evidence Prenda Law presents, consisting of a “snapshot” of possible infringement in progress. He points out that a time-coded screenshot hardly makes the case that actual infringement occurred.

This snapshot allegedly shows that the Defendants were downloading the copyrighted work—at least at that moment in time. But downloading a large file like a video takes time; and depending on a user’s Internet-connection speed, it may take a long time. In fact, it may take so long that the user may have terminated the download. The user may have also terminated the download for other reasons. To allege copyright infringement based on an IP snapshot is akin to alleging theft based on a single surveillance camera shot: a photo of a child reaching for candy from a display does not automatically mean he stole it. No Court would allow a lawsuit to be filed based on that amount of evidence…

And as part of its prima facie copyright claim, Plaintiff must show that Defendants copied the copyrighted work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). If a download was not completed, Plaintiff’s lawsuit may be deemed frivolous. In this case, Plaintiff’s reliance on snapshot evidence to establish its copyright infringement claims is misplaced. A reasonable investigation should include evidence showing that Defendants downloaded the entire copyrighted work—or at least a usable portion of a copyrighted work. Plaintiff has none of this—no evidence that Defendants completed their download, and no evidence that what they downloaded is a substantially similar copy of the copyrighted work. Thus, Plaintiff’s attorney violated Rule 11(b)(3) for filing a pleading that lacks factual foundation.

TorrentLawyer summarizes Wright’s opening salvo as laying down two rules via case law, ones that will adversely affect copyright trolling in California, and which could affect proceedings elsewhere:

RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.

RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT

This sort of lawsuit has almost always relied on little more than a snapshot and an IP address as “evidence,” the latter of which has been shot down by multiple courts for its inability to correctly identify alleged infringers. Now, Wright is throwing out Gibb’s precious bundle of snapshots as well.

Wright tackles the IP address issue next, under a heading titled “Lack of reasonable investigation of actual infringer’s identity.” He points to earlier explanations by the plaintiffs as to how they arrived at the identity of the alleged infringer and picks apart their “methodology.” Here’s Ingenuity 13 LLC’s explanation of their deductive process.

Though the subscriber, David Wagar, remained silent, Plaintiff’s investigation of his household established that Benjamin Wagar was the likely infringer of Plaintiff’s copyright. As such, Plaintiff mailed its Amended Complaint to the Court naming Benjamin Wagar as the Defendant in this action. (ECF No. 14, at 2.)…

In cases where the subscriber remains silent, Plaintiff conducts investigations to determine the likelihood that the subscriber, or someone in his or her household, was the actual infringer. . . . For example, if the subscriber is 75 years old, or the subscriber is female, it is statistically quite unlikely that the subscriber was the infringer. In such cases, Plaintiff performs an investigation into the subscriber’s household to determine if there is a likely infringer of Plaintiff’s copyright. . . . Plaintiff bases its choices regarding whom to name as the infringer on factual analysis. (ECF No. 15, at 24.)

“Factual analysis?” Really? Wright calls it for what it is.

The Court interprets this to mean: if the subscriber is 75 years old or female, then Plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant. Plaintiff’s “factual analysis” cannot be characterized as anything more than a hunch.

Wright gives Ingenuity 13 LLC several suggestions on how to narrow this list of suspects down, including “wardriving” to check whether the WiFi connection in question is open, whether several downloads have occurred at the same IP address, or just a good old-fashioned stakeout.

Such an investigation may not be perfect, but it narrows down the possible infringers and is better than the Plaintiff’s current investigation, which the Court finds involves nothing more than blindly picking a male resident from a subscriber’s home.

This sentence is damning enough, but the followup is the killer:

But this type of investigation requires time and effort, something that would destroy Plaintiff’s business model.

Wright notes the difference between criminal and civil suits that rely on IP addresses for identification. In criminal proceedings, the court usually can rely on the fact that an actual investigation has taken place prior to the charges being brought. In a civil case, the court has no such guarantee, but that doesn’t mean the judicial system has to entertain these claims.

[W]hen viewed with a court’s duty to serve the public interest, a plaintiff cannot be given free rein to sue anyone they wish—the plaintiff has to actually show facts supporting its allegations.

Back to TorrentLawyer with another addition to California federal court case law and another blow to trolling-as-business-model.

RULE 3. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST DO A “REASONABLE INVESTIGATION” TO DETERMINE THAT IT WAS THE NAMED DEFENDANT WHO DID THE DOWNLOAD, AND NOT SOMEONE ELSE WITH ACCESS TO HIS INTERNET CONNECTION.

All in all, this smackdown is going to make copyright trolling in California a rather unprofitable venture. Expect to see some venue-shifting in the future. Unfortunately for Ingenuity 13 LLC, it’s already entrenched in a losing battle, and it’s going to get even worse. Wright also had some choice words for Brett Gibbs’ misconduct. Two allegations stem from his failure to comply with the Court’s orders to cease discovery. Gibbs first told the court the plaintiffs had not obtained any information about the subscribers in question, before later regaling the court with tales of its efforts to obtain the forbidden information when responding to Orders to Show Cause.

The third allegation is more serious, alleging fraud on the court. This circles back to the mysterious “Alan Cooper.”

Upon review of papers filed by attorney Morgan E. Pietz, the Court perceives that Plaintiff may have defrauded the Court. (ECF No. 23.) At the center of this issue is the identity of a person named Alan Cooper and the validity of the underlying copyright assignments. If it is true that Alan Cooper’s identity was misappropriated and the underlying copyright assignments were improperly executed using his identity, then Plaintiff faces a few problems.

First, with an invalid assignment, Plaintiff has no standing in these cases. Second, by bringing these cases, Plaintiff’s conduct can be considered vexatious, as these cases were filed for a facially improper purpose. And third, the Court will not idle while Plaintiff defrauds this institution.

Wright then orders Gibbs to show cause why he should not be sanctioned for this misconduct, while declining to extend the sanctions to AF Holding and Ingenuity LLC — based on Gibbs’ “fiduciary interest” in the plaintiffs and the likelihood that the plaintiffs are “devoid of assets.”

Wright gets in a little dig at the still-nonexistent Alan Cooper:

If Mr. Gibbs or Mr. Pietz so desire, they each may file by February 19, 2013, a brief discussing this matter. The Court will also welcome the appearance of Alan Cooper—to either confirm or refute the fraud allegations.

Things were already looking pretty grim for Brett Gibbs, but the worst may still be on the very near horizon:

Based on the evidence presented at the March 11, 2013 hearing, the Court will consider whether sanctions are appropriate, and if so, determine the proper punishment. This may include a monetary fine, incarceration, or other sanctions sufficient to deter future misconduct. Failure by Mr. Gibbs to appear will result in the automatic imposition of sanctions along with the immediate issuance of a bench warrant for contempt.

What started out for Gibbs and co. as a route to easy money has morphed into possible jail time and a complete undermining of the “business model” Prenda Law, AF Holdings and Ingenuity 13 LLC hoped would make them, if not actual millionaires, at least slightly richer. And so another chapter of the Gibbs/AF Holdings/Prenda Law saga concludes, leaving us with the sort of cliffhanger that only those whose names haven’t been listed above will enjoy seeing played to its conclusion.

Filed Under: brett gibbs, copyright, evidence, hunches, ip address, prenda, snapshot, subscribers
Companies: af holdings, prenda law