Two Judges Punch Holes In Copyright Trolls' Claims That An IP Address Is The Same Thing As A Person

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.

As Raul of FCT puts it, it is simply not enough for Malibu Media to obtain an IP address and then bring a claim against any household member with a penis. The judge writes [PDF]:

[…] 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.




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  • identicon
    Anonymous Coward, 28 Jun 2016 @ 3:55pm

    If it was the FBI...

    The judges would have filling holes instead of punching them.

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

  • icon
    That One Guy (profile), 28 Jun 2016 @ 4:06pm

    File first, aim later

    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.”

    Or in other words 'We have no idea if we actually got the right person, but we want to be able to drag them through court anyway, just in case we got lucky and they actually are guilty.'

    Glad that one got shot down, even if the fact that it needed to be is more than a little absurd.

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

  • icon
    DB (profile), 28 Jun 2016 @ 4:37pm

    The "anyone with a penis" part appears to be factually accurate.

    If the ISP subscriber is a middle aged woman, and there are young adult females and one male in the household, who gets "blamed" for the following movies:

    A. Woman-on-woman porn
    B. Man-on-man porn
    C. Straight (male-female) porn

    The answer is always "the male".
    Until proven otherwise.

    How is that equal treatment?
    Is it reasonable to expect that man to mount a defense, when the presumption is solely based on him being the nearest male?

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

    • identicon
      Christenson, 28 Jun 2016 @ 6:35pm

      Re: You sure those men have penises?

      There's a certain number of men that *do not* have penises...not to mention a certain number of women that became men.

      OP: Equal Treatment??? Who are you kidding? These are trolls, and equal treatment for them means *you* make them rich! It all depends on innuendo: *you* watch porn...which sticks better on men than women. There's ten times as many girly mags as there are "hunk" mags.

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

  • icon
    That Anonymous Coward (profile), 28 Jun 2016 @ 5:19pm

    This, this is my shocked face.
    It is nice to see the courts get to where I've been for years and validate my position.
    Pity they are never ahead of me...

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

  • icon
    Groaker (profile), 28 Jun 2016 @ 5:35pm

    Spoofing IP addresses and MacIds means that the infringer could be anywhere on the planet. The means to spoof an IP address are easily available.

    https://en.wikipedia.org/wiki/IP_address_spoofing

    These infringement cases are not unlike the FBI framing of attorney Brandon Mayfield who was arrested and jailed for the Spanish Railroad bombing based on wishful thinking by the FBI. Not only was he proven to be in the US when the bombing took place, but Spanish police said that the recovered fingerprint was absolutely not his.

    There are judges in the US who have ruled that fingerprint evidence has not passed Daubert. There is no way that an IP address could pass Daubert except that judges are ignorant and fearful of computers and the Web.

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

    • icon
      Roger Strong (profile), 29 Jun 2016 @ 7:04am

      Re:

      As I understand it, IP address spoofing wouldn't work in this case. Any return packets - the movie you're trying to download - would be sent to the real owner of that IP address. Spoofing is only good for one-way communication. Denial of service attacks, spamming, etc.

      Having said that, no, an IP address mean nothing. A friend here in Canada recently received an infringement notice for downloading a torrent of "Sword of Shannara" in the middle of the night.

      He's 90 years old, living in a retirement home, and had never heard of bittorrent let alone "Sword of Shannara." He has a single PC connected to his cable modem, no WiFi, no bittorrent client on his computer and no malware detected. There's no possibility that the IP address claim was correct.

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

      • icon
        That Anonymous Coward (profile), 1 Jul 2016 @ 6:04pm

        Re: Re:

        All of the "evidence" for MM cases works out to about a few milliseconds of watching the traffic.

        They don't connect and xfer the whole file or acquire the whole file.

        So they could detect a spoofed address and assume it is valid.

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

  • identicon
    Anonymous Coward, 28 Jun 2016 @ 5:57pm

    Can't wait for whatever and whoever to try to spin this as just another anomaly.

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

    • identicon
      Anonymous Coward, 28 Jun 2016 @ 6:02pm

      Re:

      Nah, they're going to whine about how the judge in this case was obviously paid off and has no love for intellectual property law.

      After all, it worked for John Steele and Whatever is horse with no name, who has a hard-on for whining about Wyden and singing the praises of Prenda Law.

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

  • icon
    Vidiot (profile), 29 Jun 2016 @ 4:34am

    Cobbling together a troll defense career

    Wow... just Googled Cobbler Nevada... what a tale that tells! Apart from defendants asking for help, and one service that actually repairs shoes, it's most interesting to see that law firms can hang out their shingles as specialists in Cobbler defense.

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

  • icon
    DannyB (profile), 29 Jun 2016 @ 6:10am

    If an IP address is not a person

    If an IP address is not a person, then maybe a corporation shouldn't be one either.

    But I am frankly surprised, in today's insane world, that the court didn't do vice versa and say if a corp is a person, then an IP address is a person.

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

    • identicon
      Anonymous Coward, 29 Jun 2016 @ 6:44am

      Re: If an IP address is not a person

      Well sure! That IP address should not be forced to do things contrary to its religious beliefs. You don't need to view those nasty web pages anyway, you perv.

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

  • identicon
    Chuck, 29 Jun 2016 @ 10:29am

    Despicable

    This is utterly despicable. Never mind the "IP-as-person" crap. They're being SEXIST!

    For people who put out videos on the internet, they should be ashamed of themselves. Don't they know women watch porn too? https://www.youtube.com/watch?v=n32YYJW9y64

    Only wantonly suing people who have a penis? Sexist pigs!

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

    • icon
      That Anonymous Coward (profile), 1 Jul 2016 @ 6:06pm

      Re: Despicable

      Because society is much more eager to accept those owning a penis of being the secret pervs who would download pornography. Threats of informing the world you download & enjoy porn seem to keep the dollars rolling in.

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


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