Prenda
California Judge Moskowitz finds that an IP address, alone, is insufficient evidence to support a copyright infringement complaint
For some time now federal judges across our nation have expressed uneasiness with a copyright troll’s bald assertion that in a porn copyright infringement complaint an IP address equates with the alleged copyright infringer. This concern was famously voiced by Magistrate Judge Gary Brown of he Eastern District of New York who noted:
[I]t is no more likely that the subscriber to an IP address carried out a particular computer function — here the purported illegal downloading of a single pornographic film — than to say an individual who pays the telephone bill made a specific telephone call.
Likewise, Judge Otis Wright in the Central District of California put his concern in this regard a little more bluntly:
An IP address alone may yield subscriber information, but that may only lead to the person paying for the internet service and not necessarily the actual infringer, who may be a family member, roommate, employee, customer, guest, or even a complete stranger. […] And given the subject matter of AF Holdings’s accusations and the economics of defending such a lawsuit, it is highly likely that the subscriber would immediately pay a settlement demand — regardless whether the subscriber is the actual infringer. This Court has a duty to protect the innocent citizens of this district from this sort of legal shakedown, even though a copyright holder’s rights may be infringed by a few deviants. Thus, when viewed with the public interest in mind, the Court is reluctant to allow any fishing-expedition discovery when all a plaintiff has is an IP address — the burden is on the plaintiff to find other ways to more precisely identify the accused infringer without causing collateral damage.
See also, Rob Cashman’s excellent analysis of this issue.
Finally, however, in the 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. The complaint alleges copyright infringement, contributory copyright infringement, and negligence. On 11/20/2012 Mr. Rogers, the defendant pro se, filed his motion to dismiss the complaint for failure to state a claim (I believe the motion was cribbed from the one filed by attorney Nick Ranallo in another AF Holdings lawsuit). Subsequently on 12/3/2012 Prenda filed its response in opposition to the motion. Judge Moskowitz made his Order granting in part motion to dismiss on 1/29/2013. 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 68.8.137.53. (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.
Furthermore, the judge is concerned that:
Because the subscriber of an IP address may very well be innocent of infringing activity associated with the IP address, courts take care to distinguish between subscribers and infringers. Courts limit discovery regarding Doe defendants in BitTorrent cases to ensure that potentially innocent subscribers are not needlessly humiliated and coerced into unfair settlements.
Accordingly, the judge determines that (emphasis supplied):
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.
Judge Moskowitz next finds and orders (emphasis supplied):
As mentioned above, Plaintiff alleges that Defendant, using IP address 68.8.137.53, participated in the swarm that downloaded and distributed the Video on May 7, 2012. Under Rule 11(b)(3), Plaintiff’s counsel certified that to the best of his knowledge, this factual contention has evidentiary support. However, due to the potential for abuse in these types of cases, the Court wants to make sure that Plaintiff’s contention is supported by evidence that goes beyond the identity of the subscriber to the IP address. Therefore, the Court orders Plaintiff to provide a more definite statement setting forth the factual basis for its allegation that Defendant used IP address 68.8.137.53 to infringe its copyright. [Footnote:] In its Opposition, Plaintiff states in a footnote that “Plaintiff’s allegations and identification of Defendant are based off of much more information than a lone IP address…” Plaintiff does not, however, specify what information it has.
The judge next summarily dismisses Prenda’s idiotic negligence claim as follows:
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.
Returning to the claims of copyright infringement and contributory infringement, of course, Prenda had no further evidence as to the identity of the infringer other than the IP address, so on 2/6/2013 it dismissed the complaint without prejudice.
With the recent explosion of individual copyright infringement shakedown lawsuits, now clogging the dockets of federal courts across the country¹, it is expected that this Order will be cited often by defense attorneys and the courts to justify the dismissals of these predatory lawsuits. In fact, the mere mention of this powerful Order in another Prenda lawsuit (Lightspeed Media Corp. v. Shashek, ILSD 12-cv-00860), caused Prenda to dismiss that case the next day (2/14/2013).
Coverage
- TechDirt: Yet Another Court Says IP Addresses Are Not Enough To Positively Identify Infringers by Tim Cushing.
- Shelly Palmer’s blog: Internet Piracy and Copyright Infringement: When Are You Liable? by Ray Beckerman.
- IT-Lex: Trolls, Return To Your Bridges: IP Addresses Alone No Longer Sufficient To Identify Alleged Pirates by Joey Chindamo.
¹ Indeed, besides suing the aged, impoverished and infirm, Prenda sues the dead.
Fight © Trolls 
@SJD – Once again, thank you for making my crayon scribblings look presentable.
When it rains it pours! Judges laying the smack down on Pretenda and trolls every where. Nice job Raul!
Pass the burnt sienna one, I want to draw a picture of the extortion racket burning up…
“In its Opposition, Plaintiff states in a footnote that “Plaintiff’s allegations and identification of Defendant are based off of much more information than a lone IP address…”
Any guess what additional information they claim to have besides the IP address???
“Defendant isn’t a child, or a grandmother, or a dead laser printer… Plaintiff therefore believes, it’s gotta be the Defendant, yer Honour!”
My best guess is nothing. Maybe a BitTorrent client log that is almost useless for actually proving anything, and does nothing to tie a person to the IP address.
This is just more Prenda bullshit, not some carefully planned strategy to avoid showing their cards.
With the amount of skepticism Prenda has faced in California for the last year and a half you can bet they would use anything they had, at this point they are having trouble even getting discovery in single-Doe and individual cases, absolutely nothing is going right for them in CA, so how could they possibly benefit from leaving out the key piece of information that would actually make their case look more thought out that if they just picked up a White Pages and randomly pointed at a name?
Judge Wright called Gibbs out completely on the lack of effort Prenda puts into their “investigations” so expect to hear more on March 11.
So sad its taken this long to get this sorta of rational thinking happening.
I do think its very telling that they claim to have more evidence, and yet when asked to provide it to save their case… they do not. Why does one have a feeling the evidence they have to offer is someone in subscribers home has got to have a penis.
didn’t they claim in one case that their evidence was that someone in his apartment complex ran a business out of their home and that defendant was living with a woman he was not married to so it obviously had to be him???
So, based on this ruling, this means that to even begin the lawsuit, Prenda will have to start filing their “proof” to obtain expedited discovery?
These are my three quick thoughts. I have no idea how correct these are, since I haven’t had time to read the orders completely:
1: That the monitoring (Hansmeir’s) declarations no longer cut it
This is good news
2: Before filing a lawsuit, Prenda will have to investigate to find out the infringer
This does seem quite odd, I can see Prenda arguing that since they don’t know the identity of the subscriber they can’t investigate. Or else this just refers to actually naming someone.
3: That Prenda will have to start filing their evidence with the requests for expedited discovery.
Or does this, again, only refer to when they actually have the identity and refile/amend complaint
As far as I can tell:
1. Correct. Merely seeing that someone connected to a swarm is no longer enough to allege anything.
2. Correct, you have to go further. How? Beats The Shit Out Of Me. There’s really two ways, online and geolocate/dun the ISPs. The ISPs are getting smart now and telling the trolls to pound sand. Trying to do it online risks running afoul of anti-hacking laws. I can see it now: “Your honor, I’m just a simple attorney, filing a case were that evil 89yo wheelchair bound widow hacked into my clients files. How do I know? I hacked into her files and found porn.” Yeah, that flies.
3. This means that Prenda will have to file all of their evidence, even the hidden stuff they claim to have, which, if they have any at all, will likely expose them to hacking charges. My bet, they’ve got nothing.
Some thoughts combining recent rulings in various courts…
They will no longer be allowed to allege that the IP address alone points to the actual infringer.
They would have to prove that the entire file was downloaded by the IP address instead on we saw 2 blocks go by.
They could still file for discovery, but there would be larger limitations on their contact with subscribers and subscribers information.
Imagine what would happen if the letter Pretenda wanted to send was sent via the court, because Pretenda didn’t have the names, addresses, phone numbers, emails.
Gee the whole negligence claim would never see the light of day and Does wouldn’t have to screen every call to avoid a robo Lutz threatening them every day.
Imagine having to convince a court you actually have a case before being allowed to ask for the names.
Imagine not being able to grab a list of Does to shake down and run, but having the court watching your every move and these cases not being able to languish on dockets for months beyond the limits set in the law.
Imagine a packet explaining the flaws of IP capture tech, Guardalay, admissions of errors, admission of error rates, etc being send to each court every time they file.
Think any Judge would sign off on well dude who gets more cash for each person we extort, says they did it it has to be true?
This is good news, but at the same time John Steal, I mean John Steele, can walk away a millionaire. I know he has an enormous ego and is greedy which might not stop him before it’s too late. If he walks away now he wins. Well, not necessarily because there may always be someone targeting him and put a bullet in the back of his head. Nobody has done it yet or even confronted him face to face (correct me if I am wrong) so I am sure he is not very scared. I hope he puts his bullshit to rest and is happy with his “success”.
For the sake of the people he is allegedly defending, he’d better do some damage control. The RIAA tarnished the name of rightsholders and copyright enforcement, but John Steele’s operations have come close to completely botching any shred of legitimacy pornographers have, now that judges are questioning if pornography even qualifies for protection. Which is probably why Steele has gone into production himself – the way his name is treated like the plague in courts, I can’t imagine any self-respecting pornographer would team up with him.
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