The neverending misadventures of Prenda Law and its various attachments have led me to consider retiring this phrase when writing about them: "just when you thought it couldn't get any worse..." Prenda's situation obviously can (and will) likely get much worse, well past the point of any reasonable person's expectations.
Fresh off a judicial smackdown from Judge Otis Wright
, in which he singled Brett Gibbs
out for possible incarceration and laid waste to the Prenda "business model" by torching its argument that an IP address alone is enough to positively identify an infringer, Prenda Law finds itself on the receiving end of another smackdown, from another California judge, for the exact same issue
Southern District of California Judge Barry Moskowitz has found that an IP address, alone, is insufficient to support a complaint for copyright infringement. The lawsuit is AF Holdings v. Rogers (CASD 12-cv-01519) brought by the infamous Prenda Law Firm http://fightcopyrighttrolls.com/category/clans/prenda/. The complaint alleges copyright infringement, contributory copyright infringement, and negligence...
Addressing the copyright infringement and contributory copyright infringement, the judge notes that:
[...] the Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the FAC does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address 220.127.116.11. (The Court notes that it is actually unclear whether the IP address is registered to Defendant). As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity.
More and more courts are coming to this same conclusion, which doesn't bode well for those in the copyright trolling business. While they still may see some limited success collecting on threatening letters, the chances of them winning anything via the proper legal route is beginning to approach zero.
As Judge Otis Wright pointed out, Prenda's use of IP addresses to "identify" infringers boils down to nothing more than finding someone in the household that best matches its idea of who the likely infringer is, which seemed to involve nothing more than "blindly picking a male resident from the subscriber's home."
Judge Moskowitz lays it all on the line, making it perfectly clear that he won't be accepting IP addresses (alone) as evidence.
Due to the risk of “false positives,” an allegation that an IP address is registered to an individual is not sufficient in and of itself to support a claim that the individual is guilty of infringement.
Once again, Prenda's business model is getting kicked while it's down. As Wright pointed out in his order, properly identifying infringers takes both time and money, two commodities Prenda seems unwilling to part with. Moskowitz apparently won't be entertaining these dubious claims any further. He also takes aim at the same issue that resulted in a setback/smackdown for AF Holdings (friends of Prenda): so-called "negligence"
on the part of the subscribers.
Plaintiff’s claim fails because there is no underlying duty. One who fails to act to protect another is generally not liable for breaching a duty unless there is a special relationship giving rise to a duty to act. [...] There is no special relationship between Plaintiff and Defendant which gives rise to a duty on the part of Defendant to ensure, through heightened security measures and hawkish monitoring of internet usage, that nobody uses his internet connection to infringe Plaintiff’s copyright.
The end result? A dismissal of Prenda's claims of copyright infringement and contributory infringement without
prejudice. This leaves the door open for refiling, but considering how many doors in California are being slammed shut elsewhere by various judges, it seems unlikely that Prenda will push its luck, at least for the time being. This dismissal adds another court to the growing list of judicial entities that are unlikely to push forward on copyright infringement cases where the evidence of wrongdoing is nothing more than an IP address. How much sway this dismissal holds elsewhere remains to be seen, but it's another blow struck against the settlement letter "business model."