Court Dismisses Copyright Lawsuit, Noting IP Address Is Not Enough Evidence For Infringement

from the nice-to-see dept

A few courts have noted similar things, but Fight Copyright Trolls and TorrentFreak both recently covered an interesting district court ruling out of Seattle, where Judge Robert Lansik noted that the producers of the movie Elf Man failed to state a claim for relief, since the only evidence they had was an IP address — which wasn’t enough to actually implicate any particular person in copyright infringement.

Plaintiff’s complaint does not raise a plausible inference that any of
the named defendants are liable for direct, contributory, or indirect copyright
infringement. In the fact sections of the complaint, plaintiff carefully refrains from
alleging that the owners of the IP address – i.e., the named defendants – are the ones who
utilized the internet access to download the copyrighted material. Rather, plaintiff alleges
that the IP address assigned to each defendant “was observed infringing Plaintiff’s motion
picture” … and that each named defendant either (a) downloaded the
BitTorrent “client” application and used it to download and share the copyrighted
material or (b) permitted, facilitated, or promoted the use of their internet connections by
others to download and share the copyrighted material …. Pursuant to
plaintiff’s allegations, a particular defendant may have directly and intentionally stolen
plaintiff’s copyrighted material, or she may simply have “facilitated” unauthorized
copying by purchasing an internet connection which an unidentified third party utilized to
download “Elf-Man.” Plaintiff provides no factual allegations that make one scenario
more likely than the other: both are merely possible given the alternative allegations of
the complaint.

[….] The critical defect in this case is not the
alternative pleading of claims of direct, contributory, and indirect infringement. Rather,
the problem arises from the alternative pleading of the facts that are supposed to support
those claims. The effect of the two “or” conjunctions means that plaintiff has actually
alleged no more than that the named defendants purchased internet access and failed to
ensure that others did not use that access to download copyrighted material

Of course, we’ve seen plenty of copyright holders directly allege that failure of a internet account holder to stop infringement is somehow a violation of the law itself, but that’s not what the law says at all. Here, the judge is correctly noting that make a huge inference from just the IP address to having enough for a lawsuit makes the plaintiff’s claim not enough to move forward. This is only a district court ruling, but as a few other courts have made some similar claims, perhaps it can be useful in pushing back on standard copyright trolling, as courts become less willing to entertain fishing expeditions by trolls.

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Comments on “Court Dismisses Copyright Lawsuit, Noting IP Address Is Not Enough Evidence For Infringement”

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Have they ever had more than an I.P. address in the history of infringement lawsuits? Why is this coming up now?

Usually in these cases, the rights holders go to a judge with an I.P. address, and attempt to get a subpoena to identify the owner of the I.P. address. In theory, this is for discovery, so that the rights holders can investigate the owner and determine who is the actual infringer.

In reality, of course, such subpoenas are almost exclusively used to send threat letters to the I.P. owners, whether they are the infringers or not, in order to coerce a “settlement.”



It may just show how clueless judges have been. But I’m sure crooked is a factor in some instances.

Eventually everyone in society hears about massive judgements for sharing 24 songs. And just graduated high school students losing their college money. And having friends like Righthaven and Prenda do not help things.

It all stinks to high heaven. And judges get wind of it just like everyone else. They form an opinion just like everyone else.


Hope I have encapsulated everything well, here.

“This I.P. leads to the many offices of a large corporation. Plaintiff, would you like to proceed?”


“We have found the computer in question, but it was a Tor exit node. We have found the next I.P. in the chain. Plaintiff, would you like to proceed?”


“We have found 23 more I.P. steps in the chain and one of them routed through a school firewall. Plaintiff, would you like to proceed?”


“This final I.P. address seems to lead to a cafe with WiFi access. Plaintiff, would you like to proceed?”


“The cafe has noted access by yet another middleman relaying to a neighbourhood all the way from fucking England. Plaintiff, would you like to proceed?”


“The final I.P., as in THE final one this time, has lead to a flat owner who had his WiFi hacked by a password cracker. We have no evidence of who did the hacking, and could have literally been anyone on the planet. That final pirate has not been caught. Plaintiff, would you like to proceed?”

“How DARE that flat owner not monitor his internet usage! Pirate facilitator!!!?!!?”


Re: Re: Re: Re: Hope I have encapsulated everything well, here.

Remember, kids.

If you demand due process, it means that executives and lobbyists are spending money to get the laws changed by buying hookers, blow and yachts with swimming pools for the lawmakers and judges involved.

Money that could have been spent on hookers, blow and yachts with swimming pools… for the lobbyists.

Ignore due process. Think of the hookers.

Re: Hope I have encapsulated everything well, here.

Or there’s my version: “The IP has led directly to T-Mobile. Plaintiff, would you like to proceed?”
“We have 236,000 potential defendants to choose from. Plaintiff, would you like to proceed?”
“Little bastards taking advantage of shared IP addresses to pirate the results of my hard work in representing my clients!”
‘pirate’ whistles casually as they unconcernedly rip off the explicit version of ‘The Bad Touch’ from YouTube because it’s “Not Available on Mobile”


Of course, we’ve seen plenty of copyright holders directly allege that failure of a internet account holder to stop infringement is somehow a violation of the law itself, but that’s not what the law says at all.

Indeed. That’s why I wish the legal profession would use a term other than “facilitated.”

Facilitation is not per se unlawful. It must be intentional facilitation, or at the very least involve some sort of willful negligence standard. One can even “facilitate” an act unintentionally, but such a facilitator is not secondarily liable for that action.


Carrier-grade NAT, boys and girls

If you don’t know what it is, check the Wikipedia entry.

(pauses briefly)

This and similar schemes are making it much harder to correlate actions with IPv4 addresses — and even if that bar is cleared, that does not necessarily correlate actions with particular computers, and even if THAT bar is cleared, that does not necessarily correlate actions with particular users.

Not that this will stop techno-illiterate prosecutors from reaching entirely unsupportable conclusions, but perhaps a defense attorney reading this will find it useful as part of a defense strategy.


Re: Carrier-grade NAT, boys and girls

With Carrier-grade NAT (CGN), you need the complete 5-tuple (protocol, source IP, source port, destination IP, destination port), plus a NTP-synchronized timestamp to the millisecond. Then you can go look at the CGN logs…

Oh, wait, the CGN log is incomplete, since a full log would take gigabytes per day.

Oh, wait, your timestamp might be NTP-synchronized… But the CGN lost NTP synch some time last year (if it had ever been configured), and nobody ever noticed (who needs precise timestamps after all).

Oh, wait, there was another NAT behind the CGN. One of these small NATs which never keep any logs.

(I love NAT, it makes everything so simple!)


Difficulty of identifying is sheerly a technical problem.

IF you read the block quote with understanding, it’s a rather bizarre defect that appears to be from using the passive voice in writing: “plaintiff carefully refrains from alleging that the owners of the IP address ? i.e., the named defendants ? are the ones who utilized the internet access to download the copyrighted material.”

I wouldn’t rely on that flaw of plaintiff NOT stating the obvious.

Besides, an ISP is not going to shield pirates indefinitely. Already able to identify torrenting by upload/download ratio. I predict that opposite Mike’s hopes of “pushing back on copyright trolling” there’ll soon be a revenue stream to ISPs from tipping off lawyers and providing all the identification needed. It’s already in your “contract” that they can, or if not, can be added at any time.

Special note to “jameshogg” and his utterly ignorable “First Word” (in BLUE): HUH? Do you actually consider that to express cogent thought?

Pirates: next time you wish to “share”, just email the artist and see if you can get permission…


Justin Olbrantz (Quantam)says:

Re: Difficulty of identifying is sheerly a technical problem.

Basically the plaintiffs in this case learned that if you tell the truth and don’t misrepresent the facts to a level bordering on perjury – as most plaintiffs in file sharing cases do – it’s plainly obvious to even unknowledgeable judges that you have no case.

I’m betting they don’t make that mistake again. Next time it will be all misrepresentation and vitriol.


IP Address Has Nothing to Do with A Person

Being somewhat technical, and more or less understanding the internet, it has always amazed me that the courts would rule that a numerical IP address had any bearing on the account owner.

The only case in which that’s true is those few customers who pay lots extra for a fixed IP address. That’s usually for businesses or bloggers that need a fixed location for their web site.

Almost ALL private customers have “dynamic” IP addresses, so called because the ISP assigns one of a pool of addresses to the customer when he logs on. Tomorrow, that same address could be assigned to someone on the other side of the county. Even those who leave their computers on 24/7 can get reassigned during quiet periods.

Some lawyer did a pretty good snow job on the judge that agreed to that.



I know those that produce the movies and make profit off them are powerful. I understand copyright – but what really ticks me is off is that I paid for the movie. I paid for it on VHS and I paid for it on DVD and I paid for it on Blue Ray etc. Just about anyone with a good Disney collection will pay for a movie multiple times. So if you paid for it you should be able to get it anyway that is available.
Then they show the same movie on TV which you can record (with commercials sometimes). No problem with any of that but you download for your collection and to make it easier to watch without popping anything into the machine and your infringing.

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