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 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.
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 18.104.22.168, 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 22.214.171.124 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).
- 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.