bittorrent – Attorney Evan Brown

February 21, 2024 Copyright

Fourth Circuit overturns massive jury verdict in copyright case against internet service provider

music infringement

Plaintiff copyright holders sued defendant internet service provider alleging both vicarious and contributory copyright infringement liability arising from defendant’s customers downloading or distributing songs using BitTorrent. The jury found defendant liable and awarded $1 billion in statutory damages. Defendant sought review with the Fourth Circuit. On appeal, the court affirmed the jury’s finding of willful contributory infringement but remanded the action for a new trial on damages because it found plaintiffs failed to prove vicarious liability, as defendant did not profit from its subscribers’ acts of infringement.

No vicarious liability

Citing to Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) and CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004), the court observed that “[a] defendant may be held vicariously liable for a third party’s copyright infringement if the defendant ‘[1] profits directly from the infringement and [2] has a right and ability to supervise the direct infringer.’” In this case, the court found that plaintiffs failed to prove that defendant profited directly from its subscribers’ copyright infringement.

The crux of the financial benefit inquiry was whether a causal relationship existed between the subscribers’ infringing activity and defendant’s financial benefit. To prove vicarious liability, plaintiff had to show that defendant profited from its subscribers’ infringing download and distribution of plaintiffs’ copyrighted songs. The court found that plaintiffs did not meet that burden.

The appellate court disagreed with the lower court’s determination that defendant’s repeated refusal to terminate infringing subscribers’ accounts was enough to show financial benefit for these purposes. Instead, the court found that continued payment of monthly fees for internet service, even by repeat infringers, was not a financial benefit flowing directly from the copyright infringement itself. “Indeed, Cox would receive the same monthly fees even if all of its subscribers stopped infringing.”

The court rejected plaintiffs’ alternative theories for financial benefit. Plaintiffs argued that the high volume of infringing activity on defendant’s network, with roughly 13% of traffic from peer-to-peer activity and over 99% of that being infringing, suggested that the ability to infringe attracted customers to defendant’s internet service. However, the evidence did not conclusively show that customers chose defendant’s service specifically for its potential to facilitate copyright infringement. The argument overlooked the fact that internet service is essential for many aspects of modern life, and there was no specific evidence that defendant’s internet service was selected over competitors due to a more lenient stance on copyright infringement.

Additionally, plaintiffs claimed that defendant’s subscribers were willing to pay more for internet services that allowed for copyright infringement, citing defendant’s tiered pricing and the correlation between peer-to-peer activity and higher data usage. However, there was no substantial evidence to support the claim that subscribers chose higher internet speeds with the intention of infringing copyright. Plaintiffs’ own expert acknowledged that increased data usage could be attributed to numerous legal activities like streaming and gaming. The argument failed to establish a direct link between the desire for higher internet speeds and the intent to infringe copyright, leaving plaintiffs’ assertion that defendant profited from copyright infringement unsubstantiated. Consequently, the court found no basis for vicarious liability on defendant’s part for its subscribers’ copyright infringements, making it necessary to overturn the lower court’s decision on this issue.

Contributory liability upheld

The court upheld the lower court’s determination that defendant was contributorily liable for its subscribers’ infringement, finding that defendant was aware of and materially contributed to the infringing activities. The court emphasized the need for defendant to have knowledge of specific instances of infringement and the substantial certainty of continued infringement by particular subscribers. Despite defendant’s tiered internet services and a variety of lawful uses, the evidence presented at trial demonstrated defendant’s knowledge of repeat infringements and its decision to continue providing service to infringing subscribers, primarily to avoid losing revenue. The court rejected defendant’s arguments against contributory liability, affirming that providing a service with knowledge of its use for infringement, especially when specific instances are known, constituted material contribution to infringement.

But what are the damages now?

Because the $1 billion damages award was not allocated between the two theories of liability, and the jury was instructed to consider various factors, including the profits defendant earned from the infringements, the court could be sure that the vicarious liability verdict did not impact the damages awarded. Given this uncertainty and the significant discretion granted to the jury in determining statutory damages, the court vacated the damages award and remanded for a new trial on the damages issue.

Sony Music Entertainment v. Cox Communications, Inc., 2024 WL 676432 (4th Cir., February 20, 2024)

Fact that others had access to defendant’s wi-fi was no reason to quash subpoena in copyright case

In a suit against John Doe defendant for copyright infringement arising from defendant’s alleged distribution of plaintiff’s movies via BitTorrent, plaintiff sent a subpoena to Comcast – defendant’s ISP – seeking defendant’s identify.

Defendant moved to quash the subpoena, contending that being the target of the civil action was an undue burden, because there was a substantial likelihood that plaintiff would be unable to establish that defendant was actually the person responsible for the alleged infringement. Defendant also included a letter from his neighbor describing how that neighbor and others had used defendant’s wireless network.

The court denied the motion to quash. It held that even though defendant may turn out to be innocent, at this stage plaintiff was merely seeking to uncover his identity. The fact that other people had access to defendant’s unsecured wi-fi was immaterial.

Strike 3 Holdings, LLC v. Doe, 2019 WL 1865919 (N.D.Cal. April 25, 2019)

December 5, 2018 Anonymity, Copyright

Bittorrent copyright plaintiff got much gentler treatment in New York federal court

Less than a week after a federal judge in Washington D.C. lambasted serial copyright plaintiff Strike 3 Holdings, calling it a “troll” and characterizing its tactics as “smacking of extortion,” another federal judge – this time in New York – gave Strike 3 much gentler treatment, finding that “there is no evidence to support Defendant’s conclusory claims that Plaintiff is engaging in copyright troll litigation tactics in the instant lawsuit”.

In the case of Strike 3 Holdings, LLC v. Doe, — F.Supp.3d —, 2018 WL 6166873 (W.D.N.Y, Nov. 26, 2018), the court denied the John Doe defendant’s motion to quash a subpoena sent to Doe’s ISP seeking to discover his identity so that plaintiff could serve him with the complaint.

The court did, however, include a nod to Doe’s privacy interests in ordering that he be permitted to proceed anonymously in the lawsuit. It modified the protective order to provide that the defendant not be referred to using his initials, but instead as “John Doe subscriber assigned IP address 69.204.6.161” in any public filings.

Strike 3 Holdings, LLC v. Doe, — F.Supp.3d —, 2018 WL 6166873 (W.D.N.Y, Nov. 26, 2018)

Evan Brown is a Chicago attorney helping clients in matters dealing with copyright, technology, the internet and new media. Call him at (630) 362-7237, send email to ebrown [at] internetcases dot com, or follow him on Twitter @internetcases

November 20, 2018 Anonymity, Copyright, Electronic Discovery, Litigation, Privacy

Court labels copyright plaintiff as a troll and shuts down efforts to ID anonymous infringer

When a copyright plaintiff does not know who a particular alleged infringer is, it must first send a subpoena to the ISP assigned the IP address used to commit the alleged infringement. But the rules of procedure do not allow the sending of subpoenas until after the 26(f) conference – a meeting between the plaintiff and defendant (or their lawyers) to discuss the case. A plaintiff cannot have a 26(f) conference if the defendant has not been served with the complaint, and the complaint cannot be served unless the defendant’s identity is known.

So you can see the conundrum. To break out of this not-knowing, plaintiffs in situations like this will ask the court’s help through a motion for leave to take early discovery. That way the plaintiff can learn who the defendant is, serve the complaint, and move the case forward.

In the recent case of Strike 3 Holdings v. Doe, Judge Royce Lamberth of the U.S. District Court for the District of Columbia put a stop to the efforts of a plaintiff that it called a copyright troll right to its face (or at least right in the text of the opinion). The court denied Strike 3’s motion for leave to take early discovery to learn the identity of an unknown BitTorrent user accused of downloading pornography.

The court held that the plaintiff’s request was not specific enough, and the privacy interests of the unknown defendant, together with the social harm of being wrongfully accused of obtaining “particularly prurient pornography” were not outweighed by the trollish plaintiff’s need for the information.

Key to the court’s ruling was the idea that a subpoena in circumstances like this must be able to actually identify a defendant who could be sued. The court noted, however, that

Strike 3 could not withstand a 12(b)(6) motion in this case without resorting to far more intensive discovery machinations sufficiently establishing defendant did the infringing—examining physical evidence (at least the computers, smartphones, and tablets of anyone in the owner’s house, as well as any neighbor or houseguest who shared the Internet), and perhaps even interrogatories, document requests, or depositions. Strike 3’s requested subpoena thus will not—and may never—identify a defendant who could be sued.

The opinion is an entertaining read and conveys the judge’s clear frustration with copyright troll plaintiffs. Below are some of the more memorable quips.

Regarding the flaws of using IP addresses to identify people:

[Plaintiff’s] method [of identifying infringers] is famously flawed: virtual private networks and onion routing spoof IP addresses (for good and ill); routers and other devices are unsecured; malware cracks passwords and opens backdoors; multiple people (family, roommates, guests, neighbors, etc.) share the same IP address; a geolocation service might randomly assign addresses to some general location if it cannot more specifically identify another.

Regarding the public shame of being accused of infringing porn:

… But in many cases, the method is enough to force the Internet service provider (ISP) to unmask the IP address’s subscriber. And once the ISP outs the subscriber, permitting them to be served as the defendant, any future Google search of their name will turn-up associations with the websites Vixen, Blacked, Tushy, and Blacked Raw. The first two are awkward enough, but the latter two cater to even more singular tastes.

How trolls are quick to flee:

Indeed, the copyright troll’s success rate comes not from the Copyright Act, but from the law of large numbers. … These serial litigants drop cases at the first sign of resistance, preying on low-hanging fruit and staying one step ahead of any coordinated defense. They don’t seem to care about whether defendant actually did the infringing, or about developing the law. If a Billy Goat Gruff moves to confront a copyright troll in court, the troll cuts and runs back under its bridge. Perhaps the trolls fear a court disrupting their rinse-wash-and-repeat approach: file a deluge of complaints; ask the court to compel disclosure of the account holders; settle as many claims as possible; abandon the rest.

It’s pretty much extortion:

Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of extortion. It treats this Court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the Court to oversee a high-tech shakedown. This Court declines.

The court’s decision to deny discovery is anything but the rubber stamp approach so many judges in these kinds of cases over the past several years have been accused of employing.

Strike 3 Holdings v. Doe, 2018 WL 6027046 (D.D.C. November 16, 2018)

July 25, 2013 Copyright, Litigation

Court slaps Prenda client with more than $20,000 in defendant’s costs and attorney’s fees

AF Holdings, represented by infamous copyright trolls Prenda Law, voluntarily withdrew its copyright infringement claims against the defendant, an alleged BitTorrent infringer. Defendant sought to recover his costs and attorney’s fees pursuant to the Copyright Act, which provides that:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

The court found that all factors for an award of costs and attorney’s fees weighed in defendant’s favor:

Degree of success: There was no dispute that defendant completely prevailed in the case.
Frivolousness/Objective Unreasonableness: Plaintiff’s case was frivolous and objectively unreasonable in that it never presented any evidence (although it had the opportunity to do so) to support its claim that it had standing to assert a claim for copyright infringement. Moreover, the court found that plaintiff did not do a proper investigation to determine defendant was the one in the household who committed the alleged infringement. Instead, it simply alleged that he fit the best demographic of one who would infringe.
Motivation: The court found that it did not appear plaintiff was motivated to protect the copyright at issue, but merely to coerce settlements.
Compensation/Deterrence: The court awarded fees as a deterrent to copyright trolls everywhere: other persons or entities that might contemplate a similar business model that is not intended to protect copyrighted work but instead designed to generate revenues through suits and coerced settlements.
Furthering the Purpose of the Copyright Act: The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public. But here, the court found, plaintiff had not acted to protect original expression but rather to capitalize on coerced settlements.

Based on these factors, and after considering the number of hours spent and the hourly rate of defendant’s counsel, the court ordered plaintiff to pay $19,420.38 in attorney’s fees and $3,111.55 in costs (mainly for electronic discovery and deposition costs). Copyright trolls be warned.

AF Holdings LLC v. Navasca, 2013 WL 3815677 (N.D.Cal. July 22, 2013)

May 8, 2013 Copyright, Litigation

Are courts wising up to BitTorrent copyright trolls?

BitTorrent copyright trolling continues despite Prenda Law’s self-implosion. But there is hope that courts are coming to their senses.

Earlier this week Judge Wright issued a Hulk smash order lambasting the tactics of notorious copyright troll Prenda Law and finding, among other things, that the firms’ attorneys’ “suffer from a form of moral turpitude unbecoming an officer of the court.”

Though Prenda Law’s copyright trolling days may be numbered, it is still too early to announce the death of BitTorrent copyright trolling. Copyright plaintiffs are still filing lawsuits against swarms of anonymous accused infringers, and courts are still allowing those plaintiffs to seek early discovery of John Does’ names.

But there is reason to believe that courts are recognizing the trolls’ disingenuous efforts to join scores of unknown defendants in a single action. Last week, a federal court in Ohio (in Voltage Pictures, LLC v. Does 1-43, 2013 WL 1874862) expressly recognized the concern that some production companies have been “misusing the subpoena powers of the court, seeking the identities of the Doe defendants solely to facilitate demand letters and coerce settlements, rather than ultimately serve process and litigate the claims.” Likewise, the court recognized that other BitTorrent plaintiffs have abused the joinder rules to avoid the payment of thousands of dollars in filing fees that would be required if the actions were brought separately.

So the court issued an ominous warning. Though it found that at this preliminary stage it was appropriate to join all 43 accused swarm participants in a single action, the court noted that “[s]hould [it] find that plaintiff has abused the process of joinder, the individual John Doe defendants may be entitled to — in addition to a severance — sanctions from plaintiff, under [the applicable rule or statute] or the Court’s inherent powers.” The court went on to warn that “[w]hile the Court will not automatically hold plaintiff responsible for the alleged abuses of others in its industry, it will not hesitate to impose sanctions where warranted.”

Though it has taken several years of abusive and extortion-like litigation brought by BitTorrent copyright trolls, we may be entering an era where courts will be more willing to require these trolls to show the courage of their convictions. No doubt we have Prenda Law and its possibly-unlawful tactics to thank mostly for this crackdown. Prenda had a good thing going (from its perspective, of course). Too bad it did not abide by the timeless maxim, “pigs get fed, hogs get slaughtered.”

September 7, 2012 Copyright, Litigation

BitTorrent defendant not negligent for failing to secure home Wi-Fi network

AF Holdings, LLC v. Doe, 2012 WL 3835102 (N.D. Cal., September 4, 2012)

Copyright ~~troll~~ plaintiff AF Holdings sued defendant for, among other things, negligence for failing to secure his home wi-fi network. Plaintiff argued that defendant’s inaction allowed a third-party to commit large-scale infringement of AF Holdings’ copyrighted works.

Defendant moved to dismiss for failure to state a claim. The court granted the motion and dismissed the negligence claim.

It held that a defendant like the one in this case had no duty to protect another from harm in this situation of “non-feasance” (i.e, failing to do something) unless a special relationship existed which would give rise to such duty. In law school this principal is articulated through the hypothetical of standing on a lakeshore watching someone drowning — you don’t have to jump in to save the person unless you are a lifeguard (or the victim’s parent, or a member of some other very limited class).

The court found that no special relationship existed here, thus plaintiff had not articulated any basis for imposing on defendant a legal duty to prevent the infringement of plaintiff’s copyrighted works.

We talked about this issue, along with other issues like copyright preemption, as it arose in a different case back on Episode 170 of This Week in Law beginning at about the 19 minute 40 second mark:

Court tosses copyright claims against 244 accused BitTorrent infringers

Digital Sins, Inc. v. John Does 1–245, 2012 WL 1744838 (S.D.N.Y. May 15, 2012)

Plaintiff Digital Sins filed a copyright lawsuit against 245 anonymous BitTorrent users. The court dismissed the case against all but one of the unknown John Does, finding that the defendants had been improperly joined in one lawsuit. The judge observed that “there is a right way and a wrong way to litigate [copyright infringement claims], and so far this way strikes me as the wrong way.”

Federal Rule of Civil Procedure 20(a)(2) provides that defendants can be joined into one case if, for example, the plaintiff’s right to relief arises out of the same transaction, occurrence, or series of transactions or occurrences, or if there is any question of law or fact common to all defendants.

In this case, the court found that those requirements had not been met. Plaintiff’s allegations that the defendants merely commited the same type of violation in the same way, did not satisfy the test for permissive joinder under Rule 20. There was no basis, according to the court, to conclude that any of the defendants was acting other than independently when he or she chose to access the BitTorrent protocol.

The court went on to find that having all the defendants joined in one action would not give rise to any valid judicial economy. Any such economy from litigating all the cases in a single action would only benefit plaintiff, by not having to pay separate filing fees to sue each defendant. Moreover, trying 245 separate cases in which each of 245 different defendants would assert his own separate defenses under a single umbrella would be unmanageable.

Photo credit: nshontz

No deposition of account holder allowed until he is named as defendant in BitTorrent copyright case

Hard Drive Productions, Inc. v. Doe, 2012 WL 90412 (E.D. Cal. July 11, 2012)

In a mass copyright infringement suit, plaintiff served a subpoena on an internet service provider and got the identifying information for the account holder suspected of trading a copy of a movie via BitTorrent. The account holder was uncooperative with plaintiff’s offers to settle, and denied downloading the file.

Instead of simply naming the identified account holder as a defendant in the case and proceeding with ordinary discovery, plaintiff asked the court for leave to take “expedited discovery,” namely, to depose the account holder to learn about:

the account holder’s involvement with the alleged distribution
his computers and network setup
his technical savvy
other users who may have had access to the computers or network

The court denied plaintiff’s request for leave to engage in the expedited discovery. It found that unlike other copyright cases in which anonymous infringers were identified, the efforts in this case “went far beyond seeking to identify a Doe defendant.” Instead, the court observed, it would be “a full-on deposition during which [the account holder] who plaintiff admits is likely not represented by counsel, may unwarily incriminate himself on the record before he has even been named as a defendant and served with process.”

September 14, 2011 Governance

ISP’s alleged throttling of BitTorrent and Skype violates Computer Fraud and Abuse Act

Fink v. Time Warner Cable, 2011 WL 3962607 (S.D.N.Y. September 7, 2011)

Plaintiffs sued Time Warner (the provider of Road Runner High Speed Online internet access), alleging, among other things, that Time Warner’s alleged “throttling” of plaintiffs’ internet communications violated the Computer Fraud and Abuse Act, 18 USC 1030 (“CFAA”). Specifically, plaintiffs alleged that without their authorization, Time Warner sent forged reset packets which frustrated plaintiffs’ peer-to-peer communications (e.g., BitTorrent and other P2P mechanisms) as well as their use of Skype.

Time Warner moved to dismiss the CFAA claims. The court granted the motion as to claims that required plaintiffs to plead “loss” as defined by the statute. As for those claims that required only allegations of “access” and “damage,” the court denied the motion to dismiss and let the case move forward.

Plaintiffs brought three claims under the CFAA, one under each of subparts (A), (B) and (C) of 18 USC 1030(a)(5). This part of the statute provides liability for anyone who:

(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;

(B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or

(C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.

No CFAA loss

The CFAA defines “loss” as “any reasonable cost to any victim, including the
cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”

In this case, plaintiffs alleged that the loss they suffered arose from their payments for high-speed internet services allegedly not received, costs to prevent Time Warner’s throttling practice and the costs of obtaining information elsewhere when they were unable to use their computers for file transfers and VoIP communications. Plaintiffs also pled losses relating to time and effort in assessing “damage” to each computer for which transmissions were interrupted.

The court found these alleged losses to be outside the scope of those contemplated by the CFAA. Plaintiffs did not allege that they needed to restore data,a program, a system, or information to its condition prior to Time Warner’s conduct. The court held that Plaintiffs had failed to adequately plead this element of a CFAA claim. So it dismissed the claim plaintiffs had brought under 18 USC 1030(a)(5)(C).

“Damage” and “access” adequately pled

Plaintiffs’ failure to adequately plead loss was not the end of the case. Since subparts (A) and (B) of 18 USC 1030(a)(5) do not require one to plead “loss,” but do require pleading “damage” and “access,” the court turned its attention to see if those elements were adequately pled. It found that they were.

The CFAA defines “damage” as “any impairment to the integrity or availability of data, a system, or information.” Plaintiffs alleged that Time Warner impaired their ability to obtain data and utilize their computer systems by knowingly transmitting “reset packets to [their] computers with the intention of impeding or preventing [their] peer-to-peer transmissions” and that damage was caused because the reset packets “compromis[ed] the internal software of [their]computers and impair[ed] their ability to receive and transmit data.” The plaintiffs also alleged that the throttling process prevented data exchange and inhibited certain use of their computers. In addition, plaintiffs identified the specific types of information that had its availability “impeded” and identified a particular program, Skype, that was rendered unusable by the alleged throttling.

As for “access,” the court looked to the plain meaning, dictionary definition of the word for guidance (since the term is not defined in the CFAA). Plaintiffs had alleged that Time Warner accessed their computers in violation of the statute by knowingly transmitting reset packets to plaintiff’s computers and otherwise accessed their computers to impede data receipt and transmission.” Giving the term “access” a broad meaning, the court found these allegations to satisfy the CFAA requirement.