Internet personality Logan Paul, who has millions of subscribers on his YouTube channel, has been sued for copyright infringement. The Complaint, filed in the U.S. District Court for the Central District of California, alleges that his composition “No Handlebars” willfully infringes on an original composition by Flobots titled, “Handlebars.” The original was written and recorded in 2005. Paul released “No Handlebars” in November 2017.
Is it true that no one can own a dance step? That is what video game publisher Epic Games is arguing in a motion to dismiss that it filed on February 11 in a federal case that was brought by Terrence “2 Milly” Ferguson.
There does not seem to be any decrease in the number of defendants accused of engaging in copyright infringement through the use of BitTorrent, a peer-to-peer file sharing program. However, courts continue to show a reluctance to give plaintiffs, in those cases, all the tools they wish to use in an effort to squeeze every single dollar out of identified infringers. One of the newest defendant-friendly orders came in the case of Third Degree Films v. John Does 1-110, filed in the United States District Court District of New Jersey.
Third Degree Films, a pornographic film studio, has engaged in a similar practice of many other studios interested in recouping some of their losses from the downloading of their content without compensation for same. The company will determine a swarm of IP addresses purportedly engaged in the peer-to-peer sharing of its copyrighted content and then subpoena internet service providers (ISPs) to provide the personal contact information attached to each of those IP addresses. The ISPs will send a letter to subscribers whose services match up with the IP addresses submitted and give those subscribers a limited amount of time to file a motion to quash the subpoena or otherwise dispute the method of the studio. Meanwhile, the IP addresses remain listed as John Does; no name is made public at this stage of the litigation.
In Third Degree Films v. John Does 1-110, the court rejected the studio’s motion to seek leave to conduct expedited discovery in an effort to ascertain the identities of the 110 John Does. The motion was denied in spite of the fact that it was unopposed and no argument was held before the court.
First, as we have seen in the past, the court had a problem with the number of John Does joined in the same case. The New Jersey federal court said, “the joinder of 110 John Doe defendants in this context appears inappropriate.”
But more important to this discussion concerning expedited discovery, the court demonstrated that it had a problem with the defendants being known to the plaintiff only by an IP address.
“In some instances, the IP subscriber and the John Doe defendant may not be the same individual. Indeed, the infringer might be someone other than the subscriber; for instance, someone in the subscriber’s household, a visitor to the subscriber’s home or even someone in the vicinity that gains access to the network. See VPR Internationale v. Does 1-1017, No. 11-2068,2011 WL 8179128 (C.D.Ill. Apr. 29, 2011). As a result, Plaintiff’s sought after discovery has the potential to ensnare numerous innocent internet users into the litigation placing a burden on them that outweighs Plaintiff’s need for discovery as framed.” (emphasis added)
The justification that the court proffered was that if it would have ruled in the alternative and allowed the plaintiff to subpoena the ISPs and gain information concerning the name, address, telephone number, e-mail address and Media Access Control address of each IP address identified, it could “subject an innocent individual to an unjustified burden.” Thus, the motion for expedited discovery was denied, but without prejudice.
In order for a studio, such as Third Degree Films, to prevail in a motion for leave to conduct expedited discovery, it will have to present the court with “a detailed plan that addresses the Court’s concern regarding potentially innocent individuals.” The plan should include how the studio intends to utilize the name, address, telephone number, e-mail address and Media Access Control address of any IP subscriber if obtained, and adequately provide sufficient legal support for the application, particularly with regards to the concern, and its potential impact on social and economic relationships, that the release of such private information could compel a defendant entirely innocent of the alleged conduct to enter an extortionate settlement.
Here is a new tactic that I have not yet come across in my practice. Apparently, lawyers for copyright holders who are “sick and tired” of having their works illegally downloaded for free are working with internet service providers (ISPs) to send emails to alleged infringers with a paragraph that states,
“If you click on the link below and login to the Rightscorp, Inc. automated settlement system, for $10 per infringement, you will receive a legal release from the copyright owner.”
Click here for a very basic sample settlement agreement (Liability Release & Settlement Receipt).
This is a lot less than the typical $1,000-$5,000 settlement demands that I have come across. But is this necessarily a good thing for potential copyright infringement defendants? The site takes a $10 clip per infringement. So if a single person is accused of downloading 1,000 songs without paying the customary price…well he could be asked to pay $10,000 to settle the matter out of court. However, it appears that with a bit of negotiating (this is where a lawyer can come in hand), that demand can come down to an amount that is more easily digestible by the alleged infringer.
Of note, this $10 settlement tactic seems to be restricted to mainly music sharing cases in the meantime; however, it is likely to spread to the sharing of movies and other intellectual property at some point in the future.
Lately, I have been keeping myself busy working on behalf of individuals who have been targeted as John Does by film companies based on claims of internet copyright infringement. Typically, my clients have had their internet service providers (ISPs) subpoenaed so that the film companies can scrap personal information attached to the John Does’ IP addresses. And quite often, my clients are targeted for purportedly downloading pornographic films without paying for the right to view those movies. Sometimes it makes sense to file a motion to quash, sometimes it is best to just sit tight, and other times it pays to be proactive and try to settle out-of-court early, before litigation commences.
As a litigator entrenched in this particular area of law, I am always searching for articles about the subject of copyright infringement that may benefit my clients. Recently I came across the article, The Economics of (Killing) Mass-BitTorrent Lawsuits, which is an excellent read for anyone defending individuals who have been accused of internet copyright infringement with a group of other John Does (especially a large group).
- Northern District of California ruling that defendants cannot be joined when they are from different swarms.
- Northern District of California ruling that BitTorrent users in the same swarm can only be joined if they are present in the swarm at the same time.
- Central District of Illinois ruling that an IP-address does not constitute a person, which may help someone quash a subpoena.
- Multiple dismissals due to lack of personal jurisdiction over named defendants.
23,322 defendants were named in what, at the time of filing, was the largest file-sharing copyright infringement lawsuit ever. It was based on the accusation that those defendants illegally downloaded the movie The Expendables. However, at least for now, a vast majority of those defendants are free from the reach of the movie’s film studio (Nu Image), because the U.S. District Court of Columbia ruled that the defendants are not within the court’s jurisdiction. The judge stated that Nu Image could only make discovery requests related to John Does “for whom there is a good faith basis to believe may reside in the District of Columbia.” If a John Doe’s IP address is located in another district, that good faith basis is out the window.
The website TorrentFreak determined that only 84 John Does have IP addresses that are likely to be based in the District of Columbia. The many John Does who decided to wait on sending over their settlement checks can now breathe a sigh of relief. The film studios; however, cannot be pleased with the District Court of Columbia’s decision. If judges around the country decide to follow suit, studios will have to file various lawsuits all across the United States, which will cost a lot of time and money, and may not be worth it based on the somewhat small settlement checks they expect to receive.
Here is the money quote from the judge:
“The court understands why, for the sake of convenience and expense, the plaintiff would desire to use this single lawsuit as a vehicle to identify all of the 23,322 alleged infringers. Furthermore, the court understands and is sympathetic to the need to combat copyright infringement. However, it is not appropriate, and there is not good cause, to take third-party discovery in this case solely to obtain information that will be used in another lawsuit in a different venue.”
In our world of increasing online copyright infringement claims, there are more and more people who are being accused of infringing activity who happen to be completely innocent with regards to the accusations. While it is smart for people to password protect their wireless routers, many fail to do so, which allows anyone to latch on to the router’s wireless network and surf the web. It also allows anyone within a certain distance to download movies, music, and other types of material that may be protected by a copyright.
The way that plaintiffs are finding people to sue for infringing activity is by scrapping the stored IP address based on the time and date of infringement. IP addresses do not stick with individual computers and/or mobile devices; they are assigned based on the router being used. If an individual does not password protect his/her Wi-Fi network, he/she could end up being liable for someone else’s infringing activities.
This tends to be a larger problem for companies than it is for individuals. While many individuals are becoming smarter about protecting their wireless networks, a lot of businesses actually use free Wi-Fi as a selling point to attract new customers and please existing customers. Think along the lines of a hotel chain, coffee shop, and airports. As the Las Vegas Review-Journal reports,
“Some people don’t want to pirate music from home, because they’re afraid of getting caught, so they’ll use the Wi-Fi connection of a neighbor or the coffee shop down the street,” said Randi Thompson, the [The National Federation of Independent Business] Nevada director.
If a customer uses a business’s Wi-Fi to illegally downloaded copyrighted works for free, the business is not directly infringing on the copyright. However, the business could be held to be a vicarious and/or contributory infringer.
Companies should be as proactive as possible to prevent customers from engaging in copyright infringing activities and should be proactive in warning its customers of the consequences should they be found to have directly infringed someone’s held copyright. An attorney can be of service by helping draft a formal policy that prohibits illegal downloads. A long version of this policy may be placed on the company’s website and/or login page to get access to the Wi-Fi network, while an abbreviated version could be placed around the company’s establishment.
Compare that video with the South Park parody video, below.
South Park displayed that clip in one of its episodes which aired in 2008. Late last year, Brownmark Films, which produced the original non-parody video, sued Viacom and Comedy Central for airing the clip. The suit contended that the airing of the parody amounted to copyright infringement.
Parodies typically are protected from claims of copyright infringement under the fair use doctrine. Fair use permits people to use copyrighted material without the owner’s consent if it is used in a reasonable manner for certain purposes. The first prong of the doctrine looks at the purpose and character of the use. Many courts have held that using a copyrighted work for parody or satire is permissible under the scope of this prong.
In parodies, the commercial nature of the work does not make it presumed to be an illegal use. Thus, even though South Park is a television show produced for commercial gain and aired by Comedy Central for commercial gain, does not mean that it is not a fair use, since parodies have this special protection in copyright law.
Parodies can easily claim that they have transformative value. Parodies must mimic an original in order to be effective and make their point understood. Oftentimes, the threshold question will be whether a parody may reasonably be perceived. The original video had millions of views before it was made into a parody by South Park. Thus, the parody was likely reasonably perceived.
Recently, Brownmark Films’ case was thrown out in summary judgment.
The judge applied the four factor test of “fair use” and determined that a clip that lasts less than a minute in a 25-minute episode wasn’t terribly substantial and wouldn’t ruin Brownmark’s market enjoyment of its video.
Moreover, South Park made transformative use of What What (In the Butt), in the judge’s opinion, by accomplishing “the seemingly impossible — making the WWITB video even more absurd by replacing the African American male singer with a naive and innocent nine-year old boy dressed in adorable outfits.
Pornography. A lot of people watch it. A lot of pornography that is watched is not illegally obtained. However, you can almost be sure that if you are downloading pornography through a BitTorrent client, you obtaining a movie for free that the copyright holder wants you to pay for. Such an act is illegal.
Pornographic movie copyright holders are protecting their intellectual property more than ever. Lawsuits based on illegal downloads of pornographic films have turned into a brand new revenue stream for the copyright owners. As I have mentioned in the past, though, sometimes film studios threaten the wrong people. Last time, I wrote about the Palm Beach County grandmother. She is not alone. Recently, a 70-year old grandmother in San Francisco was told she had to pay $3,400 to settle her case or potentially pay a $150,000 fine if the case goes to trial. These are either frisky grandmas or they are being falsely accused. The San Francisco grandmother plans to fight the accusation.
“I’d say to the judge, ‘I have no idea how this happened,’ ” she said. “If Sony can get hacked, if the Pentagon can get hacked, my goodness, what chance does an individual have?”
But it’s not only grandmothers who are fighting back. A Purdue University student (currently known as Doe No. 26) was recently accused of downloading pornography in violation of copyright law, and is being sued by producer Third Degree Films, Inc. Third Degree Films, Inc. served a subpoena on Purdue University to provide Doe No. 26’s name, address, telephone number, and email address, and Doe No. 26 decided to challenge the subpoena through a filed motion to quash.
I recently discussed an alleged infringer’s right to file a motion to quash a subpoena. The Purdue University student will likely have to show something more than just a general denial of liability to win on his motion. Certain courts have held that the privacy interest in ISP account information is minimal and not significant enough to warrant the special dispensation of anonymous filing.
Doe No. 26’s motion to quash is embedded below. Interestingly, the motion seeks to quash based on not only confidential information being shared, but to protect the Doe’s reputational interests. Let’s see if this Doe gets lucky and the judge actually gives the motion any consideration.