from the weak-arguments-getting-even-weaker dept
Fight Copyright Trolls has tracked down two more court decisions that reach an obvious conclusion: an IP address is not a person. In both cases, the normal trolling tactics were used: legal threats against alleged infringers, based on nothing more than IP addresses. In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media's request for default judgment, pointing out that the limited info it was working with could not rule out a successful defense being raised by the accused infringer.
[…] the Defendant’s connection to the alleged infringement is based solely on an IP address. The IP address here, as the Plaintiff concedes, is actually held by the Defendant’s spouse. (Compl. ¶ 25) In the Amended Complaint, Malibu Media is not certain that the infringer is Defendant, but rather pleads “discovery will likely show that Defendant is the infringer.” (Id. ¶ 27) In fact, the infringer could be another person altogether, such as a family member or, as Malibu Media itself concedes, “sometimes, the infringer is another person who the subscriber has authorized to use the subscriber’s Internet.” (Id. ¶ 28) Or, it could be that the infringer is someone using the subscriber’s Internet via a wireless router that is not password protected. While it is possible that the infringer is Defendant, Malibu Media has not proved that Fodge actually caused or is responsible for the alleged infringement.
Beyond that, the court has issues with the copyright claims in general. While Malibu Media claimed 23 titles were infringed by Fodge, the court points out that only 16 of them were registered before the alleged infringement. An unregistered copyright is not fatal to infringement claims, but it does limit the plaintiff's claims to actual damages. It also undercuts Malibu's infringement assertions, as it is much more difficult to prove ownership without a registration.
The second order [PDF], issued by Oregon Magistrate Judge Stacie Beckerman contains something a bit more unexpected.
What is surprising (and I believe unprecedented) is that the judge sua sponte dismissed Count 1 of direct copyright infringement. Many defense attorneys have tried in the past to knock out direct infringement claims and they have never, to my knowledge, been successful. This is because the claim has to merely be plausible which a very, very low threshold. I think this is the first time that a federal judge took it upon herself to examine such a claim, find it not plausible and dismiss it without prejudice.
The dismissal is prompted by the usual troll reliance on IP addresses being treated as people. Judge Beckerman doesn't see it that way:
The only facts Plaintiff pleads in support of its allegation that Gonzales is the infringer, is that he is the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond. That is not enough. Plaintiff has not alleged any specific facts tying Gonzales to the infringing conduct. While it is possible that the subscriber is also the person who downloaded the movie, it is also possible that a family member, a resident of the household, or an unknown person engaged in the infringing conduct.
What Cobbler Nevada, LLC was trying to do was raise weak allegations first, then work its way backward to establishing Gonzales as being the actual infringing party. The judge notes that this tactic runs afoul of legal precedent.
Twombly and Iqbal do not allow Plaintiff to guess at who is liable, and attempt to confirm liability through discovery. “Plausible” does not mean certain, but it does mean “likely,” and Plaintiff has not pled sufficient facts to support its allegation that Gonzales is the likely infringer here.
In fact, as Raul notes in the FCT post, the odds of Gonzales being the infringer are much lower than in other infringement cases -- something Cobbler Nevada knew when pursuing this lawsuit. Footnote 4 of the order makes it clear that the copyright troll knew it had a long list of potential infringers on its hand, but simply chose to go after the name linked to the IP address.
Plaintiff’s counsel acknowledged at oral argument that the IP address linked to the infringing conduct serves an adult foster care home operated by Gonzales. Any resident or guest of that home could be the infringer.
It's one thing if a troll simply shrugs and hopes the court will let it connect the dots between the IP address it obtained and the person it's registered to. It's quite another when a single IP address is host to multiple possible infringers, but the plaintiff chooses instead to focus on the person paying for the connection -- or, if they lack a penis -- the closest household member in possession of one.
The court also dismisses with prejudice Cobbler Nevada's indirect infringement claim, logically pointing out that it takes far more to prove this than simply pointing out that the alleged infringer failed to kick everyone else off the network.
Both of these decisions are useful additions to the casework against copyright trolls' awful business model. Hopefully these will result in more swift dismissals of "an IP address is a person" lawsuits while discouraging further adventures in speculative invoicing.