Movie Studio & Copyright Troll Claim 'Mere Possession' Of Popcorn Time Is Illegal And Could Result In A Year In Jail

from the nutty-copyright-trolling-theories dept

Meet Carl Crowell. Willamette Week recently ran a profile on his copyright trolling practice, based out of Oregon. Unlike copyright trolls like Malibu Media and Prenda Law, who focused on porn, Crowell has tried to cultivate a copyright trolling client list straight out of Hollywood — which is how he ended up as the copyright trolling lawyer working for Voltage Pictures on the Dallas Buyers Club trolling efforts in Oregon. You may remember those, because he was the apparent mastermind behind the attempt to abuse trademark law to go after people in Oregon. As we noted at the time, the trademark claims were ridiculous, and clearly seemed to be an attempt to look for a more friendly state court, rather than having to go into federal court with the copyright claims.

Crowell, it appears, has other bizarre legal theories in his copyright trolling bag of tricks — and now he’s testing them out on Popcorn Time users. As you may have heard, a few weeks ago, the makers of the total flop movie, The Cobbler, with Adam Sandler (9% fresh rating on Rotten Tomatoes — sample reviews include “grindingly dull” and “ill-conceived curio”), decided to sue a bunch of Popcorn Time users for watching the film. And, you may have heard that a very similar lawsuit was filed this week, targeting Popcorn Time users for watching another flop of a film, Survivor, starring Pierce Brosnan (8% fresh rating on Rotten Tomatoes — with one review stating “there’s a reason you probably never heard of it.”).

Crowell is the lawyer behind both lawsuits, and while everyone is pretty much focused on the “ooh, they’re suing Popcorn Time users” aspect of it, the lawsuits have some absolutely insanely ridiculous claims, beyond just copyright infringement — including trying to argue that mere possession of Popcorn Time is a criminal act under an Oregon state law barring the possession of “burglary tools.” From the lawsuit:

The mere possession of a software program like Popcorn Time is the type of conduct that the State of Oregon has criminalized in ORS 164.235, which reads in part:

164.235 Possession of a burglary tool or theft device. (1) A person commits the crime of possession of a burglary tool or theft device if the person possesses a burglary tool or theft device and the person:

(a) Intends to use the tool or device to commit or facilitate ? a theft by a physical taking; or
(b) Knows that another person intends to use the tool or device to commit or facilitate a ? theft by a physical taking.

(2) For purposes of this section, ?burglary tool or theft device? means ? [any] instrument or other article adapted or designed for committing or facilitating a ? theft by a physical taking.
(3) Possession of a burglary tool or theft device is a Class A misdemeanor.

It is acknowledged that the transfer of data, storing of the physical data locally on a hard drive and facilitation and redistribution of the stolen data to others may or may not be a ?physical taking? under Oregon law.

Whether or not the mere possession and use of Popcorn Time is a Class A misdemeanor under Oregon Law and punishable by up to one year in jail (ORS 161.615(1)) and a fine of $6,250.00 (ORS 161.635(1)(a)) may be argued.

It’s one thing to bury this deep within your legal filing (even though the actual claim for relief is only on copyright infringement). It’s another to scream this bit of simply wrong legal theory in a press release. But, that’s apparently what Dimiter Nikolov of the studio behind the total flop of a movie, Survivor, is announcing in the press release, reiterating the wacky legal theory Crowell shoved into the end of both of the Popcorn Time lawsuits filed so far:

“The mere possession of a software program like Popcorn Time is akin to the type of conduct that the State of Oregon has criminalized in ORS 164.235, which deems the possession and/or use of a burglary tool or theft device as a Class A misdemeanor,” says Dimiter Nikolov, Vice President of Business & Legal Affairs at Nu Image, Inc. “It is our belief that the transfer of data, storing of physical data locally on a hard drive and facilitation and redistribution of stolen data to others should be considered a ‘physical taking’ under Oregon law and we felt compelled to take this opportunity to fight back and ensure that those who choose to engage in this type of behavior face real repercussions, just as a person would if they shoplifted a DVD or other physical consumer product from a retailer.”

In case you’re wondering, this “legal theory” is completely bullshit. First of all, copyright infringement is not theft (even if the lawsuits pretend the two are interchangeable). So the Oregon law doesn’t even come close to applying. Second, even if, in some twisted way a judge considered copyright infringement to be theft, it still wouldn’t matter, because 17 USC 301, which defines copyright preemption, makes it clear that federal copyright law “preempts” any state law attempts to create state level copyright laws.

Given that, and the fact that the actual claims in the lawsuit focus solely on the federal copyright claims, it makes you wonder what game Crowell and Nu Image are playing with this completely laughable legal theory. Do they really think that lying about the law will magically get people to pay for their crappy movies? Maybe, instead of inventing bogus legal theories, they should invest in making better movies.



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Comments on “Movie Studio & Copyright Troll Claim 'Mere Possession' Of Popcorn Time Is Illegal And Could Result In A Year In Jail”

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83 Comments
tqk (profile) says:

Re: Re: Calling copyright infringement "stealing" is lying.

Or, you know, don’t steal something if you don’t want to face the consequences…..

Such as Crowell’s law degree? It doesn’t appear he earned it from what I’m reading.

Is it right for a computer security researcher to be sent to jail for a year for being curious as to how a program (like Popcorn Time) works, even if he’d never even used it? Jail time for mere possession?

PaulT (profile) says:

Re: Re: Re:

“Or, you know, don’t steal something if you don’t want to face the consequences…..”

Is that like making accusations you can’t back up based on assumptions you pulled out of your ass? Or, are you actually saying that you should go to jail if you possess a tool that can be used to break the law, even if you don’t use it?

You’re a hacker then, since the device you typed your comment on can be used to gain unauthorised access to any system you choose. When are you going to turn yourself in, hacker boy?

sophisticatedjanedoe (profile) says:

Mr. Crowell is a resourceful troll, just like John Steele who was also known to threaten laypeople with bogus criminal charges.

Presented here are only few of Crowell’s sleazy tactics. There is a lot more douchebaggery going on. For example, recently Crowell overscumbagged Steele by asking the court to authorize pre-discovery depositions of unrepresented defendants. Needless to say, it is a grave mistake to agree to be deposed by a crook without an attorney, no better than talking to the police.

Anonymous Coward says:

In case you’re wondering, this “legal theory” is completely bullshit. First of all, copyright infringement is not theft (even if the lawsuits pretend the two are interchangeable). So the Oregon law doesn’t even come close to applying. Second, even if, in some twisted way a judge considered copyright infringement to be theft, it still wouldn’t matter, because 17 USC 301, which defines copyright preemption, makes it clear that federal copyright law “preempts” any state law attempts to create state level copyright laws.

Untrue. It’s not preempted by 301 unless it involves rights equivalent to those in 106 for copyrightable works under 102/103. Since NEITHER of these two criteria is met, how is it preempted? This is unusually poor analysis, even for you, Mike.

Anonymous Coward says:

Re: Re:

We can start with ORS 164.235. It’s a criminal statute. You can’t pursue criminal statutes in civil court. It just can’t happen, full stop. That should have been considered first.

But… assume for the sake of argument that the judge rules that theft is equivalent to copyright infringement, and thus magically becomes eligible.

HOW does it become eligible? What right can the copyright owner possess that enables him to sue? 17 USC 106, exclusive rights granted by copyright. Everything else in 17 USC chapter 1 is either definitions of what is covered, or limitations on those rights.

So either it DOES fall under 106, and is preempted,

or it DOES NOT fall under 106, and the plaintiff lacks standing.

Choose one. 106 is all that’s on offer here.

Anonymous Coward says:

Do they really think that lying about the law will magically get people to pay for their crappy movies?

I think this is actually a strategic move on their part.

The actual legal case does not depend on these comments but on federal copyright law. However, the document include this boneheadedly wrong theory, presented in a way that it cannot be contested, as it isn’t really part of the legal argument.

If this gets entered into legal arguments enough times, it will be in the public record, and eventually those referencing old cases will be swayed by it, especially if they keep seeing it pop up.

So this isn’t really included for THIS lawsuit; it is there to set the stage for people to accept this theory in the future, due to how “prevalent” it is in the media and in legal cases.

There comes a point where it doesn’t matter if it is just wrong; if you get enough people believing it is correct, then those without a marketing budget shouting “but it doesn’t work that way” get drowned out.

My hope is that a judge comments on it even though it doesn’t actually apply to the suit.

Anonymous Coward says:

Everyone in Oregon should be absolutely worried by this because by this example anyone who owns a computer and uses it are in fact committing a crime being as by this example you can use a computer to commit and carry out a theft on the internet. The copyright trolls will no doubt wet their undies in excitement that they can extort every person possessing a computer in Oregon. /sarcasm.

cpt kangarooski says:

Re: Re: theft by a physical taking

It’s theft if you obtain something for free that you normally would have to pay for.

So you’re saying that if I normally would have to pay for a cup of coffee, but the coffee shop gives me a free cup (resulting in my obtaining a cup of coffee) as part of a promotion or something, that’s theft?

Maybe you should reword your definition a little bit.

Karl (profile) says:

Re: Re: Re: theft by a physical taking

So can you explain why nobody who committed copyright infringement has ever been charged with theft?

Oh, they have – and it was found not to be theft by the Supreme Court:

The phonorecords in question were not “stolen, converted or taken by fraud” for purposes of 2314. The section’s language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use.

PaulT (profile) says:

Re: Re: theft by a physical taking

“It’s theft if you obtain something for free that you normally would have to pay for. “

I just attended a film festival and I got some free DVDs that would cost money in a shop. Is that theft?

I also watched a movie on iPlayer while travelling, I would normally have to pay for it, is that theft?

I also listened to music for free, which i would normally have to pay for, is that theft?

I also got a free newspaper, an item that is usually paid for. Is that theft?

No, of course not. That’s the choice of the provider to offer me content for free. It is not the job of the consumer to work out whether they are doing so legally. Go after the guys who run Popcorn Time, that’s fine. But your half-assed assumptions about the intentions of people who possess a mere tool won’t fly in reality. i know you’re either paid by the **AAs to shill, or you’re so obsessed with attacking this site that you can’t let the real world intrude, but this is common sense.

Hopefully, you can see why you’re being a raving idiot, yet again.

That One Guy (profile) says:

Re: Re: theft by a physical taking

This line again? Do you ever get tired of being dishonest, or is it a hobby for you?

Infringement does not equal theft, this is not a difficult concept. Copying does not equal taking. Likewise, as I pointed out in our last little chat, you do not actually want it to be treated the same in any sense but the emotional.

But hey, if that’s how you think, by all means charge someone who infringes on a copyright with theft, see how well that goes for you.

That One Guy (profile) says:

Re: Re: Re:2 Don't claim something you don't want to be true

I have no patience for liars or the intentionally dishonest, so I’d say I’ve got reason to be annoyed. It’s a mild irritation at most though, verging on exasperation, so if that’s really an ‘accomplishment’ for someone, I’d say they’ve got bigger problems than me being annoyed by dishonesty.

Anonymous Coward says:

The mere possession of a software program like Popcorn Time is the type of conduct that the State of Oregon has criminalized in ORS 164.235, which reads in part:

164.235 Possession of a burglary tool or theft device. (1) A person commits the crime of possession of a burglary tool or theft device if the person possesses a burglary tool or theft device and the person:

(a) Intends to use the tool or device to commit or facilitate … a theft by a physical taking; or
(b) Knows that another person intends to use the tool or device to commit or facilitate a … theft by a physical taking.

Their claim does not match the statute. They claim that the mere possession is a crime. But the law actually requires an intent by someone to use it to commit theft.

And of course, as so many have pointed out, copyright infringement is not “theft”; but even if you think it is, it surely isn’t “theft by physical taking” unless “physical taking” has no meaning whatsoever.

Anonymous Coward says:

Typical techdirt. The problem isn’t that this move goes too far, it’s that it doesn’t go anywhere near far enough! Why, isn’t it obvious that the real theives are those who didn’t pay for the movie? And who are the majority of them? Those who didn’t even have the common decency to watch it in the first place!!! It’s time to take the gloves off and lock up those theives!!!(!!) If you can’t prove you’ve watched every movie made this year, YOU ARE A THIEF! Either pay up for all those illegally avoided fees or go to jail.

After all, law is supposed to be rational, isn’t it? And isn’t this the rational conclusion of this type of thinking?

PaulT (profile) says:

Re: Re: Re: Re:

“Stealing copyrighted material is called infringement”

Thank you! I’ve been waiting a long time for the AC morons here to admit that it’s infringement and not theft! Does that mean you’re going to join the rest of us in reality on the other issues here, or am I going to have to wait another decade for your next revelation over basic concepts?

Anonymous Coward says:

just out of curiosity, what other situations/items fall into this ‘just getting or using something means jail time’? if this goes through, approx 80% of people will be locked up!

obviously it didn’t deter him what has happened to other lawyers/law firms who tried to go down this and similar roads. perhaps gentle reminders might help? or throwing a bit more ‘incentive’ in the right direction?

Wyrm (profile) says:

Reasonable theory vs complete b***t

It is acknowledged that the transfer of data, storing of the physical data locally on a hard drive and facilitation and redistribution of the stolen data to others may or may not be a “physical taking” under Oregon law.
His point can be taken in one of two interpretations:
– either he’s trying to b***t his way through a law that is very clearly not made for this case (applying “physical taking” to digital information)
– or the law is not clear enough (allowing “copy of digital information” to be seen as “physical taking”).

I very clearly think it’s the first case, but when lawyers can even try and twist the meaning of words to that extend without being instantly laughed (and possibly fined) out of courts, then the law is not clear enough.

Uriel-238 (profile) says:

burglary tools and theft devices

Is there anything in the world that is sold as a burglary tool or a theft device?

Is there any part of the law that defines these terms?

Is there any part of the law that defines who decides what is a burglary tool or a theft device?

How can such a law be taken seriously? Or is this one of those laws like the CFAA or Espionage Act that when matched with prosecutorial discretion allows the DA to put in prison anyone that displeases him, such as the husband of the woman he fancies?

Anonymous Coward says:

Re: burglary tools and theft devices

Is there any part of the law that defines these terms?

The article above does point out that paragraph 41 of the complaint excerpts a definition that Oregon uses. Here’s a more complete extract:

Oregon Revised Statutes (ORS) 164.235 Possession of a burglary tool or theft device.

(2) For purposes of this section, “burglary tool or theft device” means an acetylene torch, electric arc, burning bar, thermal lance, oxygen lance or other similar device capable of burning through steel, concrete or other solid material, or nitroglycerine, dynamite, gunpowder or any other explosive, tool, instrument or other article adapted or designed for committing or facilitating a forcible entry into premises or theft by a physical taking.

Wex: Ejusdem Generis

Anonymous Coward says:

Re: Re: Re: burglary tools and theft devices

I dearly hope…

I dearly hope that people notice I started my extract of ORS 164.235 with the paragraph clearly marked “ (2) ”.

I guess I didn’t explicitly say that it perhaps hints that you might want to click on the linky part to find out what “ (1) ” says, and maybe to see if there’s a paragraph “ (3) ”.

I do hope you read closely enough to notice that “ (2) ” doesn’t appear to actually define a crime, it just appears to define “burglary tool or theft device”. But then again—maybe it’s me who’s reading the words wrong. YMMV.

Anonymous Coward says:

Re: Re: Re:3 when laws are written so that YMMV

when laws are written so that YMMV

There are two countervailing considerations here. I touched on them a some days ago, under another article, but I’ll raise them again, in different words.

First, on the one hand, let me remind you that law is a specialist subject. Just because you can read English does not necessarily mean that you can predict how a court will rule at any procedural stage. For that, you really do need help from a competent, licensed professional.

Second, but perhaps more importantly, Congress is badly broken. Some of the state legislatures may be better, but most of them seem even worse than the federal Congress. Theoretically, you elect representatives whose job it is to read these laws, and then to compare what they thought was written with what the courts actually do.

The legislators that you elect to do that job for you —skilled lawyers, mostly— actually expend much of their time chasing dollars so they can show off their hairdos on the boob-tube. The job that they’re supposed to be doing isn’t getting done.

Meanwhile, you the citizen, are still somehow presumed to have knowledge of all these laws—even though the Supremes have recentally figured out that it’s not reasonable to even expect professional cops to know the exacts ins and outs of the laws they kill you over.

Uriel-238 (profile) says:

Re: Re: Re:4 "Law is a specialist subject"

…law is a specialist subject. Just because you can read English does not necessarily mean that you can predict how a court will rule… For that, you really do need help from a competent, licensed professional.

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood. — James Madison

It shouldn’t be that way. That the laity cannot understand the law of the land is becoming one of the many forces towards the downfall of the society. Especially so, when a given district attorney has the power to charge, convict and imprison anyone who displeases him.

legislators that you elect… actually expend much of their time chasing dollars so they can show off their hairdos on the boob-tube.

Actually campaigning to the lowest common denominator, and yes, they consequently are beholden to their contributors more than their constituency. Those of us on the ground are in a state that is familiar to those who know US history: Taxation without representation.

As we approach the 2016 election, I hope that enough people realize they are disenfranchised, that none of the candidates represent themselves before the election as they will administrate once in office. And none of them have the best interests of the people at heart.

Notably, the situation is not unique to the US. It’s very possible that the next world war will be a civil war.

Anonymous Coward says:

Re: Re: burglary tools and theft devices

Right, and it generally requires a proof of intent to classify those tools as a “burglary tool”. It’s mostly a stacking law to be added to attempted, B&E, or burglary/theft charges for prosecutors to pile on the charges like a good tough-on-crime drone, or when they have nothing else to charge someone with if they don’t particularly like the fellow for some reason (and yes I have seen prosecutors be that petty and I’m not even in the legal system myself!)

All “burglary tools” have legitimate uses as well as illegitimate ones. Under that statute even a simple hammer can be called a burglary tool along with made-for lock picks and the like.

Lock picks can be used to open doors for those that locked themselves out, same with lock shims. Cutting torches and lances are primarily construction and repair tools, etc etc. There’s nothing actually designed solely for committing crimes.

But a piece of software falling under that statute… not unless it’s actively used to open an electronic lock. Popcorn Time doesn’t fall under this statute. The guy is dangerously close to being extortionate I’d imagine.

Anonymous Coward says:

All I know about this is:

1. I can not afford to pay. I have just enough money to live on.

2. If I did have to pay it could cost me my house and then where would I live.

Based on 1 and 2 above I have adopted the solution of not viewing, accessing, or downing any music, video, or streamed content even view for pay as I would never be sure that the content provider had the legal right to provide it.

Anonymous Coward says:

Re: Re:

Certainly admirable and ethical. I agree with you, if you don’t have the money or object to “The Man” then just don’t participate. It really is that simple.

But there are cases where people have been named in copyright lawsuits through no fault of their own. There’s the now infamous case of the corpse getting sued for infringement, for example. It certainly lessens your chances of getting caught in a dragnet, but it won’t eliminate them.

That One Guy (profile) says:

Re: Re:

Why would he bother? He’s banking on the targets not knowing better, for the scam his knowledge of the laws needs only be good enough that he can throw together a sufficiently ‘official’ looking threat letter.

When you never actually expect or want to take your ‘case’ to court where it can he challenged, you can pretty much make it up as you go along.

Anonymous Coward says:

Re: Re: Re:

Makes me wonder if he’s read the laws about taking payments under false pretenses being considered fraud and doing it through the US Mail becomes mail fraud and a federal crime.

He’s outright lying about this law and its applicability to Popcorn Time. Check. He’s demanding payment or he’ll file a lawsuit based on a criminal statute. Check. He’s mailing the letters through the US mail. Check.

Sounds like criminally actionable mail fraud to me.

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