When targeting internet users, bittorent copyright trolls don’t bother to diligently investigate who they are suing. The trolls rely solely on an IP address for which unlicensed German “investigators” recorded a wink-long piece of a movie purportedly uploaded by that IP address to a swarm. After an ISP sells out its customer to the troll, a shakedown ritual starts — the ritual that generally results in either settlement or default judgement. Sometimes, when a victim puts up a fight, the troll “ cuts and runs ”: dismisses a lawsuit without prejudice in a hope to avoid compensating a wrongly accused.

Trolls don’t bother to make sure that the owner of the IP address in question — a person who pays the Internet bill — is an infringer. Such investigation is not needed because the majority of judges don’t pay much attention to screaming deficiencies of the complaints and jollily rubberstamp subpoenas and motions for default judgment.

Once in a while a district judge rules that IP address is not equal a person, and hence the plaintiff does not meet the plausibility standard set by Ashcroft v. Iqbal. Such rulings, while eagerly reported by tech media, so far have been a drop in the ocean and did not deter copyright trolls from continuing to abuse the judicial system.

Today the US Court of Appeals for the Ninth Circuit added its significant weight, and this weight can finally tip the scales of the bittorent litigation:

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 on appeal is one of a myriad non-porn cases — Cobbler Nevada v Gonzales (ORD 15-cv-00866) — filed by Carl Crowell on behalf of a shell company, a nominal plaintiff created solely to facilitate the shakedown, and most likely this plaintiff doesn’t even have a standing to sue.

The defendant (represented by David Madden) is an owner of a foster care home, who ran an open wi-fi. A lawyer who has a lint of dignity would drop such a defendant at once, but Crowell didn’t.

After tracing infringement of its copyrights to a particular IP address, Cobbler Nevada, LLC filed suit against the John Doe IP address for direct and contributory copyright infringement. Cobbler Nevada soon discovered that the IP address was registered to Thomas Gonzales, who operated an adult foster care home. Cobbler Nevada then amended its complaint to name Gonzales as the sole defendant, alleging that he directly infringed by copying and distributing copyrighted works himself or, in the alternative, contributed to another’s infringement by failing to secure his internet connection.

The district court rightly ruled in favor of the defendant and awarded 17 K in attorney’s fees:

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.

After drinking a cocktail of greed and Chutzpah, the plaintiff decided to appeal. And lost: today the Court of Appeals affirmed the lower court’s decision in a devastating order.

I expect this ruling to have a significant impact. To the troll, a low standard set by the district courts is vital: the necessity to investigate putative defendants would drive the costs up and eventually would make the racket unprofitable.

All of a sudden a motion to quash stands a very good chance of success. Thanks @CarlCrowell ! — Raul (@Raul15340965) August 27, 2018

Coverage