Wednesday, January 22, 2014

Judge Rice Dismisses Elf-Man's "Indirect" Theory of Liability

Well, you can't win them all. The other day I wrote about Judge Lasnik's ruling that an IP address alone was insufficient to sustain a complaint for direct or contributory copyright infringement. Today, Judge Rice ruled exactly the opposite.

To recap, some of the defendants in the Elf-Man case in Eastern Washington filed the same motion that was filed in the Western Washington Elf-Man case. Actually, Mike Matesky prepared and filed the same motion on behalf of several of his clients who happen to be in both the Eastern and Western Districts.

So now the layperson gets to see how the sausage is made.  Two different judges in two districts that sit right next to each other are both presented with the same motion filed against the same complaint by the same plaintiff.  One judge grants the motion, the other judge denies most of it.

Why you ask?  Who knows!

The point is there is no clear cut answer in litigation.  One of the most frustrating things for me when speaking with new clients is that they seem to think the law is cast in stone, unbendable and absolute--all the answers must be clear-cut.


I don't care how well you think you know the facts and the law, I guarantee you cannot predict what a judge or jury will do; I don't care what you read on wikipedia.  After all, these are human beings with their own experiences and mindsets. Everyone is different.

So if you call me and ask "what's going to happen with my case," maybe you can understand a little better why the answer is always "I don't know."  I can give you an educated guess, but there is no way to know for certain what will happen.  In litigation, you just have to accept the uncertainty and roll with it.

Monday, January 20, 2014

IP Address Alone Not Enough To File Suit

So Friday, Judge Lasnik of the Western District of Washington, right here in good ole' Seattle, held that an IP address alone was insufficient to state a claim for copyright infringement against the ISP subscriber.

What does this mean? Plenty.

I'm struggling a little with how much to say about this case, because it means different things to lawyers than non-lawyers. For now, I'll just describe it in terms that most people reading this blog will appreciate.

In order for a copyright owner to have the right to file a copyright infringement lawsuit, the copyright owner has to do a bunch of things first. One thing is to actually register the copyright with the Copyright Office. You don't have to register the copyright before the infringement began, but you do have to register it before the court system will let you file a suit.

Another thing the copyright owner must do first is allege sufficient facts that make it "plausible" that the person being sued is the actual one who did wrong. In other words, the federal court system doesn't let you maintain a lawsuit against just anyone without demonstrating that you actually have a case against that person.

Let's assume for the sake of argument that a copyright owner did, in fact, identify an IP address that was observed downloading a copyrighted work without authorization.  Classic copyright infringement. Many, many people have argued that an IP address alone is not enough evidence to identify the actual person who downloaded the work.  In other words, even if you have the IP address, you still don't know who the person is that might have done it.  But that's all the copyright owners have when they file these bittorrent lawsuits.

So the argument goes that since the copyright owner can't identify the actual person who downloaded the movie, they don't have enough facts to maintain a lawsuit against the Internet subscriber.  The person who downloaded it could be anybody (again, we're assuming that someone did actually download the movie at this IP address). This argument has been made before, but it usually fails.

But on Friday, Judge Lasnik here in Seattle held that an IP address alone was not enough.  He likened the IP address to a telephone number, and said that just because someone pays the phone bill doesn't mean me made a specific call.  There's a certain compelling logic to that position.  Judge Lasnik went on to say that an IP address was actually less likely to identify a specific person than a telephone number because random strangers can squat on your unsecured WiFi, unlike your telephone line.

So to those of you who want to know if a copyright owner can actually file a lawsuit against you--an Internet subscriber--with no evidence other than your IP address, then the answer is YES, they can file it.  But they can't maintain that action, at least not here in Seattle.

Judge Lasnik's order is just below, and under that is a different order by Judge Hegarty of the District of Colorado who held exactly the opposite.

For more on the legal analysis, visit FightCopyrightTrolls. Also, a big congratulations to Mike Matesky who successfully brought and argued this motion.