Important Appeals Court Ruling States Clearly That Merely Having An IP Address Is Insufficient For Infringement Claims

from the a-good-ruling dept

Tons of copyright lawsuits (and even more copyright trolling shakedowns that never even reach court) are based on one single bit of data: the IP address. We've seen numerous district courts reject using a bare IP address as evidence of infringement, but now we have a very important (even if short and to the point) ruling in the 9th Circuit that could put a serious damper on copyright trolling.

In this copyright action, we consider whether a bare allegation that a defendant is the registered subscriber of an Internet Protocol (“IP”) address associated with infringing activity is sufficient to state a claim for direct or contributory infringement. We conclude that it is not.

The case involved well known copyright trolling lawyer Carl Crowell representing Cobbler Nevada LLC. As we discussed in our article on the district court decision, the actions in this case were particularly nefarious. Crowell quickly learned that the IP address in question belonged to an adult foster care home, but decided to go after the operator, Thomas Gonzales, even though he was aware that any of the many residents or staff may have actually been responsible for the infringement. Gonzales (reasonably) refused to just cough up the names and details of residents and staff without a court order, and Crowell's response was just to go after Gonzales directly. But the facts of this case made it especially easy for the lower court to highlight how a mere IP address is not nearly enough to allege infringement.

The district court properly dismissed Cobbler Nevada’s claims. The direct infringement claim fails because Gonzales’s status as the registered subscriber of an infringing IP address, standing alone, does not create a reasonable inference that he is also the infringer. Because multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle. A plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer. Nor can Cobbler Nevada succeed on a contributory infringement theory because, without allegations of intentional encouragement or inducement of infringement, an individual’s failure to take affirmative steps to police his internet connection is insufficient to state a claim.

The direct infringement part is easy. Obviously, there's no evidence presented with a single IP address that Gonzales was downloading, so it's on its face ridiculous to claim to have evidence of direct infringement.

The only connection between Gonzales and the infringement was that he was the registered internet subscriber and that he was sent infringement notices. To establish a claim of copyright infringement, Cobbler Nevada “must show that [it] owns the copyright and that the defendant himself violated one or more of the plaintiff’s exclusive rights under the Copyright Act.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). Cobbler Nevada has not done so.

The more important part here is the contributory infringement argument. Crowell/Cobbler claimed that Gonzales could be liable for contributory infringement for failing to lock down and police his internet connection. That's a pretty big leap and the court is not impressed. It first highlights the ever important Betamax ruling that you can't make a third party liable for infringement for distributing a product or service that is "widely used for legitimate, non-infringing purposes." Internet access counts. It also points to the Grokster ruling, in which the Supreme Court said that "inducement" to infringe could be seen as contributory liability. But merely failing to police your internet connection is, in no way, inducement.

Cobbler Nevada’s complaint lacks any allegations that Gonzales “actively encourage[ed] (or induc[ed]) infringement through specific acts.”... Nothing in Cobbler Nevada’s complaint alleges, or even suggests, that Gonzales actively induced or materially contributed to the infringement through “purposeful, culpable expression and conduct.” ... No allegations suggest that Gonzales made any “clear expression” or took “affirmative steps” to foster the infringement—Gonzales’s only action was his failure to “secure, police and protect” the connection.

And, based on the Betamax test, Gonzales is in the clear as well:

Providing internet access can hardly be said to be distributing a product or service that is not “capable of substantial” or “commercially significant noninfringing uses.”

The court has some additional words on Crowell trying to push his theory of contributory liability:

We note that Cobbler Nevada’s theory both strays from precedent and effectively creates an affirmative duty for private internet subscribers to actively monitor their internet service for infringement. Imposing such a duty would put at risk any purchaser of internet service who shares access with a family member or roommate, or who is not technologically savvy enough to secure the connection to block access by a frugal neighbor. This situation hardly seems to be one of “the circumstances in which it is just to hold one individual accountable for the actions of another.”

The court then upholds the lower court's awarding of attorney's fees to Gonzales, noting the "objective unreasonableness" of Cobbler's arguments.

Specifically, the court flagged as unreasonable Cobbler Nevada’s decision to name Gonzales as the defendant, even after concluding that Gonzales was not “a regular occupant of the residence or a likely infringer.” The court also considered deterrence: it reasoned that awarding fees would deter Cobbler Nevada from an “overaggressive pursuit of alleged infringers without a reasonable factual basis” while encouraging defendants with valid defenses to defend their rights. See Fogerty, 510 U.S. at 534 n.19. The court’s rationale is in keeping with the purposes of the Copyright Act. See Kirtsaeng, 136 S. Ct. at 1988–89 (a district court “may order fee-shifting . . . to deter . . . overaggressive assertions of copyright claims”).

Now, where this case may have a bigger impact is in lawsuits against ISPs for failing to police their networks. You may have heard of a few of these cases recently. Just last week Cox settled one of those cases, but it's facing an even bigger one from all the major record labels.

But that case is not unlike this one, just on a different scale. In this case, Gonzales is the ISP, and got sued for failing to police his network, despite receiving many infringement notices. As the court makes clear, that does not make him liable for infringement. In the Cox case, it too is the ISP who was sued for failing to police its network, despite receiving many infringement notices (indeed, Cox did much more than Gonzales). So it would appear that we may have a bit of a circuit clash here, in which the 4th Circuit says that ISPs can be liable for infringement based solely on notices of evidence that is nothing more than IP addresses, while the 9th Circuit (correctly) understands the implications of such a ruling, even to the point of finding it "objectively unreasonable."


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 29 Aug 2018 @ 10:58am

    Like the old saying goes, IP addresses are like assholes: Everyone's got one and you're never gonna identify anyone solely by looking at it.

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

  • identicon
    Anonymous Coward, 29 Aug 2018 @ 10:59am

    Imposing such a duty would put at risk any purchaser of internet service who shares access with a family member or roommate, or who is not technologically savvy enough to secure the connection to block access by a frugal neighbor.

    It would also put at risk all Comcast internet customers due to their modems opening up public wifi access to any other Comcast subscriber. That piggybacked traffic is on the same IP address.

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

    • icon
      Gary (profile), 29 Aug 2018 @ 11:09am

      Re: Comcast

      It would also put at risk all Comcast internet customers due to their modems opening up public wifi access to any other Comcast subscriber. That piggybacked traffic is on the same IP address.

      Are you sure about that? Because I thought their modems segregate that traffic, and use the logon (with comcast email) to log.

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

      • identicon
        Anonymous Coward, 29 Aug 2018 @ 11:34am

        Re: Re: Comcast

        idk, but when they first started up there were stories about how one could easily obtain access to your neighbors machine(s)

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

      • icon
        madasahatter (profile), 29 Aug 2018 @ 2:51pm

        Re: Re: Comcast

        Actually any device with a guest account could have this problem. If it is setup by default many may never reset the credentials.

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

  • icon
    Mason Wheeler (profile), 29 Aug 2018 @ 11:13am

    But merely failing to police your internet connection is, in no way, inducement.

    The commas, are not, necessary, here.

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

  • icon
    That Anonymous Coward (profile), 29 Aug 2018 @ 12:21pm

    Judge Grady not withstanding, this looks like a good ruling but one merely has to look at the history of these cases to see it doesn't stop them from charging ahead.

    We claim we observed an ip address for a fraction of a second sharing a block of digital data. This one tiny observation is evidence that we are owed up to the $750,000.

    An IP address can not identify the person(s) using it at the time.

    The fragment they claim to have observed, in most cases, can't be viewed or even recreate one frame of the movie.

    They have claimed they can prove the case but only after a court forces the accused to give them access to every computing device, online account, & device in the home (all devices not just those used by the subscriber). They ignore court instructions about what to look for, in some cases they ignore the forensically sound images until the 11th hour (or 5th extension of time motion), and when there is no evidence it is held up as proof that the subscriber deleted it in such a way that an expert could find no record of it ever having been there. If a visitor to the home plugged in a flash drive 3 years ago & that isn't turned over its 'proof' they are hiding the drive that could prove the case.

    They ask to depose the neighbors, asking if they were the ones who used the subscribers account to 'STEAL' the movie in an attempt not to get proof, but to cause the subscriber to weigh the reputation damage against the few thousand of making it all go away.

    They submit lists of hundreds of other copyright items they claim the subscriber stole, using the same fraction of a second proof, to influence the court into putting more faith in the claims. This 'technology' has never been proven in a court & they actively attempt to protect it from any sort of review that might expose issues.

    They get the subscribers name then troll social media trying to infer more connections to bolster the claim. Oh they liked a Game of Thrones page, and GOT is on our list of other stuff we claim they stole (despite not having any interest in that), ergo they stole our movie too. In porn cases anyone in the household with a penis is pointed at as the culprit.

    It costs the trolls $400 to file.
    It costs the accused thousands to defend & deal with delays and obstruction.
    As Judge Wright observed, the court should not be a cog in their shakedown scheme, but this is what happens in case after case.
    Even when they accused can prove beyond any doubt they didn't do it, the troll gets to cut & run to avoid having to pay the costs of people they accused without actual merit.

    It is unfair to make the accused bear any of the costs when the case collapses. Fee shifting should be used to remind the trolls that they need actual evidence and not bold accusations without backing. Allowing them to terrorize people with the power of the court & then flee when they can't prove it. If you make baseless accusations & disrupt people, there is a price to be paid & that price should be at least the cost of defending these crap accusations.

    I mean Cobbler has cut & run from so many cases, but still tries to tell courts they are on the up and up, when any real challenge to their methods is brought up. If putting the right phrase & demands in an answer/counterclaim results in them doing the cut & run in case after case after case... perhaps the Judges should be able to ask questions on if these are real cases or just cogs turning in an extortion scheme.

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

    • identicon
      Anonymous Coward, 29 Aug 2018 @ 12:39pm

      Re:

      FWIW, a typical 1080p film in a modestly compressed format only needs roughly 15 KB per frame, about 2 GB for a 2-hour movie in good quality. Large torrents typically use large piece sizes, e.g. 1 MB, so that's 2 or 3 seconds of content per piece. So they really don't have trouble verifying that it's a copy of the content in question. The rest of your points are accurate though.

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

      • icon
        That Anonymous Coward (profile), 30 Aug 2018 @ 1:07am

        Re: Re:

        They do not track for an entire piece.
        They "see" a connection made & the hit is a millisecond at best. They don't see if the piece is fully transferred.

        Even at 2 - 3 seconds of a movie without the header information its just garbage. It isn't a copy of the full movie, its a bunch of 1's & 0's.

        They don't bother to track them from start to finish, it is merely a single "hit" that is assumed the whole movie was transferred.

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

  • icon
    NeghVar (profile), 29 Aug 2018 @ 12:29pm

    It could be hell

    If it could be based on an IP address alone, then these people would be even deeper in a digital hell-hole than they already are.
    https://www.theguardian.com/technology/2016/aug/09/maxmind-mapping-lawsuit-kansas-farm-ip-addres s

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

  • icon
    CanadianByChoice (profile), 29 Aug 2018 @ 12:47pm

    Not QUITE the same

    Cox lost their "Safe Harbors" status when they failed to "follow its own repeat infringer policy".
    Gonzales may have been a defacto ISP, but he did not have a repeat infringer policy to "fail to follow".

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

    • icon
      That Anonymous Coward (profile), 30 Aug 2018 @ 5:01pm

      Re: Not QUITE the same

      Please define 'repeat infringer'.

      Being found guilty of copyright infringment is a legal conclusion, not the result of some random company sending extortion letters in the format of a DMCA notice.

      Their safe harbor was lost because the Judge on the case has a hardon for the cartels. (See also who ran the Mega trial & claimed not being willing to come to the US to finally be properly served in a place he had no real contacts with meant he had fled justice.)

      Following his methodology, saying he is a pedophile 5 times in a row should result in him being in prison.

      No trial needed, just the word of a company that exists to extort money from people they accuse while collecting a large cut of the cash.

      No one can explain how a company who has hidden their source code, defying a court order, from outside review of its reliability is allowed to dictate who is allowed to have internet access.

      Just because you can get 10 hits of an ip address (and in some cases within milliseconds of each other multiple notices for a single event) does not prove the subscriber is the downloader, yet Judge Grady has decided that this for profit company can send enough notices to have what might be the only ISP in town throw you off unless you pay the fee they demand.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Thad's Ominous Roomba, 29 Aug 2018 @ 1:43pm

    OR, they'll now get identifying / browser details from Google.

    That's soon to come. Your friend Google will SELL YOUR details for about a quarter, and it'll be enough to not just accuse an IP address, but to get search warrants of your computer.

    could put a serious damper on copyright trolling.

    Yet again, Mike "supports copyright" Masnick is simply cheering the problems that make enforcement difficult.

    But after Cox folded, it's a new era. ISPs are now required to take seriously the notifications of infringement. The details they have (and will logically be forced to provide) of the actual computer behind the address will nail it down.

    That's assuming this isn't effectively over-turned. Suppose were drug-dealing, murder, child porn: think that doctrine will stand? NOPE.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Thad's Ominous Roomba, 29 Aug 2018 @ 1:48pm

    By the way, Mansick yet again merely re-writing days late.

    Can't you at very least glance over Drudge and just go on a rant? It's stunning how little you do here.

    And after I've suppressed the Zombies for you! No sigthings this week. -- You might also note LACK of new accounts. Last one I saw was two weeks ago...

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Thad's Ominous Roomba, 29 Aug 2018 @ 1:51pm

      Re: By the way, Mansick yet again merely re-writing days late.

      Whoops. Got the "Held For Moderation" LIE again when forgot can't put "Masnick" into subject line. Yet hasn't added usual variant. I guess because sees that'll be futile, or thinks that my mis-sperring is to advantage. -- Who knows? -- But it's weird to NOT give up on filtering his own name.

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

      • identicon
        Anonymous Coward, 29 Aug 2018 @ 3:38pm

        Re: Re: By the way, Mansick yet again merely re-writing days late.

        "Guys, I'm so confused as to why my comments keep getting held. Read about this confusion in the 3rd comment in a row I posted within 10 minutes!"

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

    • identicon
      TripMN, 29 Aug 2018 @ 2:38pm

      Re: By the way, Mansick yet again merely re-writing days late.

      Wait, you suppress the Zombies? Are you expecting TD to pay you a reward for your zombie hunting skills or something?

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

    • identicon
      Anonymous Coward, 29 Aug 2018 @ 4:15pm

      Re: By the way, Mansick yet again merely re-writing days late.

      You're performing an invaluable service here.

      And by that I mean you're performing a service of no value. Please just stop. You're only embarrassing yourself at this point.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 29 Aug 2018 @ 4:22pm

        Re: Re: By the way, Mansick yet again merely re-writing days late.

        Mocking Mike Masnick for being too ashamed to admit he hates copyright enforcement may be of no service to you, but trust me, it's been quality entertainment for many, many people for years.

        Have a great day!

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

        • identicon
          Anonymous Coward, 29 Aug 2018 @ 4:44pm

          Re: Re: Re: By the way, Mansick yet again merely re-writing days late.

          Even if that were true, finding years of entertainment value in something like that is just sad. Were you abused as a child? Do you find satisfaction from injuring small animals? What is it that prevents you from engaging humanity as humans and treating others with respect? Why do you feel the need for your baseless ideas to be accepted by people who clearly disagree with you and routinely prove you wrong?

          Seriously, seek help. I'm certain you're a textbook case of something.

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

        • identicon
          Anonymous Coward, 29 Aug 2018 @ 6:39pm

          Re: Re: Re: By the way, Mansick yet again merely re-writing days late.

          "Many people are saying..."

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

        • identicon
          Anonymous Coward, 29 Aug 2018 @ 7:14pm

          Re: Re: Re: By the way, Mansick yet again merely re-writing days late.

          many, many people for years

          Right. Like the thousands of "sleeping giant artists" hurricane head/David Lowery swore up and down would rise up with the death of SOPA to rape every search engine out of existence.

          Or the thousands of "inventors hurt by this site" Hamilton insisted would stand by Shiva Ayyadurai and all he could find were a few publicity SEOs and Janice Duffy.

          Yeah... many, many people. On a site you fuckheads gleefully claim nobody reads.

          How's that Paul Hansmeier defense fund coming along bro?

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

        • identicon
          Anonymous Coward, 29 Aug 2018 @ 10:34pm

          Re: Re: Re: By the way, Mansick yet again merely re-writing days late.

          Mocking you for being the clueless dipshit that you are has been a humorous, if extremely easy form of amusement for years. It’s the comedic equivalent of solvent abuse. And that’s not the only way you remind us of a long term glue sniffer.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    John Smith, 29 Aug 2018 @ 8:42pm

    How does one protect their reputation when someone can defame them from an anonymous remailer, never be traced, and have the lies end up in a search engine? Answer: they can't.

    How can someone protect their copyright when they cannot identify who is stealing their work, and cannot hold the intermediaries liable? Answer: they can't.

    Why even have copyright and libel laws if there is no protection for all? Might as well abolish b oth and turn the internet into a true free-for-all. Right now we have an "only the criminals have guns" situation.

    I gave up on the ideal of publishing books even if some will sell a few copies here and there. Those who can get major media exposure (like on the network owned by DISNEY or another big evil corporation), while everyone else sees their work disappear into a black hole, with no money coming out?

    Those who do "prove themselves" with free material still can't sell the premium material to more than a single customer. Price? Six figures. Pure patronage model that circumvents the need for copyright protection. Or they make YouTube videos that Google can protect and monetize with its distribution for a very reasonable cut of 32 percent.

    Like i said, artists will adapt, but the audience won't because it can't. Unless you think every how-to and self-improvement book ever written is a scam, the audience loses when creators have no incentive to produce. The creators will find a way but that way may not help anyone. Life will go on, with governments getting less tax revenue, creators getting paid less and migrating o other industries, anrd the audience getting the big pile of free stuff it dreamed of, only it's all crap.

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

    • identicon
      Anonymous Coward, 29 Aug 2018 @ 10:34pm

      Re:

      How does one protect their reputation when someone can defame them from an anonymous remailer, never be traced, and have the lies end up in a search engine?

      Set the record straight publicly, not rely on a pseudonym, and don't write stuff that give the impression that you have something to hide?

      How can someone protect their copyright when they cannot identify who is stealing their work, and cannot hold the intermediaries liable?

      Get a court order, maybe evidence that's more than an IP address, instead of relying on the trolls you claim to loathe but can't stop using as your enforcement muscle?

      I gave up on the ideal of publishing books even if some will sell a few copies here and there

      Instead you took to whining on a tech blog that nobody reads?

      Or they make YouTube videos that Google can protect and monetize with its distribution for a very reasonable cut of 32 percent

      Gee, sounds like a viable model that you just won't touch because... why, you feel that indebted to the RIAA for suing kids?

      Unless you think every how-to and self-improvement book ever written is a scam

      That's the gimmick you're going for? Flogging self-help books to gullible people who are willing to fund your retirement?

      And you wonder why your credibility is shit...

      with governments getting less tax revenue, creators getting paid less and migrating o other industries, anrd the audience getting the big pile of free stuff it dreamed of, only it's all crap

      "Jones will come back! Yes, Jones will come back!"

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

    • identicon
      Anonymous Coward, 29 Aug 2018 @ 10:36pm

      Re:

      Old man yells at internet, film at 11.

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

    • identicon
      Anonymous Coward, 30 Aug 2018 @ 1:04am

      Re:

      >I gave up on the ideal of publishing books even if some will sell a few copies here and there.

      If by self help you mean 'make a fortune doing x', why are you moaning about not being able to sell the book when you could be making a fortune by doing what you write about?

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

    • identicon
      Anonymous Coward, 30 Aug 2018 @ 7:20am

      Re:

      How can someone protect their copyright when they cannot identify who is stealing their work, and cannot hold the intermediaries liable? Answer: they can't.

      How is it my problem that technology makes things difficult for you? Answer: it isn't.

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

  • identicon
    ryuugami, 29 Aug 2018 @ 10:25pm

    one single bit of data: the IP address

    That's 32 bits of data (or 128 bits for IPv6).

    :)

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

    • identicon
      Anonymous Coward, 30 Aug 2018 @ 3:54am

      Re: What about IPv6?

      With IPv4, as we can assume is the case, the router uses NAT so the internal IP of the infringing device and the external IP of the router are not related. IPv6 does not use NAT, and also uses part of a device's MAC address as the IPv6 address. In some future case, when IPv6 is more popular, could this lead to a search for the device with the correct MAC address? Of course, it would be simple for the infringer to make sure the MAC does not appear in the IPv6, but it may be easier for copyright extortionists to make claims against the individual user, or search for the infringing device. If I'm not mistaken, in a less tech understanding court, those extra 96 bits may do a lot of damage.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories

Close

Email This

This feature is only available to registered users. Register or sign in to use it.