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:
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.
(a) Intends to use the tool or device to commit or facilitate … a theft by a
physical taking; or
(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.
(b) Knows that another person intends to use the tool or device to commit or
facilitate a … theft by a physical taking.
(3) Possession of a burglary tool or theft device is a Class A misdemeanor.
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.