Two Judges Punch Holes In Copyright Trolls' Claims That An IP Address Is The Same Thing As A Person

from the weak-arguments-getting-even-weaker dept

Fight Copyright Trolls has tracked down two more court decisions that reach an obvious conclusion: an IP address is not a person. In both cases, the normal trolling tactics were used: legal threats against alleged infringers, based on nothing more than IP addresses. In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media’s request for default judgment, pointing out that the limited info it was working with could not rule out a successful defense being raised by the accused infringer.

As Raul of FCT puts it, it is simply not enough for Malibu Media to obtain an IP address and then bring a claim against any household member with a penis. The judge writes [PDF]:

[…] the Defendant’s connection to the alleged infringement is based solely on an IP address. The IP address here, as the Plaintiff concedes, is actually held by the Defendant’s spouse. (Compl. ¶ 25) In the Amended Complaint, Malibu Media is not certain that the infringer is Defendant, but rather pleads “discovery will likely show that Defendant is the infringer.” (Id. ¶ 27) In fact, the infringer could be another person altogether, such as a family member or, as Malibu Media itself concedes, “sometimes, the infringer is another person who the subscriber has authorized to use the subscriber’s Internet.” (Id. ¶ 28) Or, it could be that the infringer is someone using the subscriber’s Internet via a wireless router that is not password protected. While it is possible that the infringer is Defendant, Malibu Media has not proved that Fodge actually caused or is responsible for the alleged infringement.

Beyond that, the court has issues with the copyright claims in general. While Malibu Media claimed 23 titles were infringed by Fodge, the court points out that only 16 of them were registered before the alleged infringement. An unregistered copyright is not fatal to infringement claims, but it does limit the plaintiff’s claims to actual damages. It also undercuts Malibu’s infringement assertions, as it is much more difficult to prove ownership without a registration.

The second order [PDF], issued by Oregon Magistrate Judge Stacie Beckerman contains something a bit more unexpected.

What is surprising (and I believe unprecedented) is that the judge sua sponte dismissed Count 1 of direct copyright infringement. Many defense attorneys have tried in the past to knock out direct infringement claims and they have never, to my knowledge, been successful. This is because the claim has to merely be plausible which a very, very low threshold. I think this is the first time that a federal judge took it upon herself to examine such a claim, find it not plausible and dismiss it without prejudice.

The dismissal is prompted by the usual troll reliance on IP addresses being treated as people. Judge Beckerman doesn’t see it that way:

The only facts Plaintiff pleads in support of its allegation that Gonzales is the infringer, is that he is the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond. That is not enough. Plaintiff has not alleged any specific facts tying Gonzales to the infringing conduct. While it is possible that the subscriber is also the person who downloaded the movie, it is also possible that a family member, a resident of the household, or an unknown person engaged in the infringing conduct.

What Cobbler Nevada, LLC was trying to do was raise weak allegations first, then work its way backward to establishing Gonzales as being the actual infringing party. The judge notes that this tactic runs afoul of legal precedent.

Twombly and Iqbal do not allow Plaintiff to guess at who is liable, and attempt to confirm liability through discovery. “Plausible” does not mean certain, but it does mean “likely,” and Plaintiff has not pled sufficient facts to support its allegation that Gonzales is the likely infringer here.

In fact, as Raul notes in the FCT post, the odds of Gonzales being the infringer are much lower than in other infringement cases — something Cobbler Nevada knew when pursuing this lawsuit. Footnote 4 of the order makes it clear that the copyright troll knew it had a long list of potential infringers on its hand, but simply chose to go after the name linked to the IP address.

Plaintiff’s counsel acknowledged at oral argument that the IP address linked to the infringing conduct serves an adult foster care home operated by Gonzales. Any resident or guest of that home could be the infringer.

It’s one thing if a troll simply shrugs and hopes the court will let it connect the dots between the IP address it obtained and the person it’s registered to. It’s quite another when a single IP address is host to multiple possible infringers, but the plaintiff chooses instead to focus on the person paying for the connection — or, if they lack a penis — the closest household member in possession of one.

The court also dismisses with prejudice Cobbler Nevada’s indirect infringement claim, logically pointing out that it takes far more to prove this than simply pointing out that the alleged infringer failed to kick everyone else off the network.

Both of these decisions are useful additions to the casework against copyright trolls’ awful business model. Hopefully these will result in more swift dismissals of “an IP address is a person” lawsuits while discouraging further adventures in speculative invoicing.

Filed Under: , , , ,
Companies: malibu media

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Two Judges Punch Holes In Copyright Trolls' Claims That An IP Address Is The Same Thing As A Person”

Subscribe: RSS Leave a comment
That One Guysays:

File first, aim later

In the Amended Complaint, Malibu Media is not certain that the infringer is Defendant, but rather pleads ?discovery will likely show that Defendant is the infringer.?

Or in other words ‘We have no idea if we actually got the right person, but we want to be able to drag them through court anyway, just in case we got lucky and they actually are guilty.’

Glad that one got shot down, even if the fact that it needed to be is more than a little absurd.


The “anyone with a penis” part appears to be factually accurate.

If the ISP subscriber is a middle aged woman, and there are young adult females and one male in the household, who gets “blamed” for the following movies:

A. Woman-on-woman porn
B. Man-on-man porn
C. Straight (male-female) porn

The answer is always “the male”.
Until proven otherwise.

How is that equal treatment?
Is it reasonable to expect that man to mount a defense, when the presumption is solely based on him being the nearest male?


Re: You sure those men have penises?

There’s a certain number of men that do not have penises…not to mention a certain number of women that became men.

OP: Equal Treatment??? Who are you kidding? These are trolls, and equal treatment for them means you make them rich! It all depends on innuendo: you watch porn…which sticks better on men than women. There’s ten times as many girly mags as there are “hunk” mags.


Spoofing IP addresses and MacIds means that the infringer could be anywhere on the planet. The means to spoof an IP address are easily available.

These infringement cases are not unlike the FBI framing of attorney Brandon Mayfield who was arrested and jailed for the Spanish Railroad bombing based on wishful thinking by the FBI. Not only was he proven to be in the US when the bombing took place, but Spanish police said that the recovered fingerprint was absolutely not his.

There are judges in the US who have ruled that fingerprint evidence has not passed Daubert. There is no way that an IP address could pass Daubert except that judges are ignorant and fearful of computers and the Web.

Roger Strongsays:


As I understand it, IP address spoofing wouldn’t work in this case. Any return packets – the movie you’re trying to download – would be sent to the real owner of that IP address. Spoofing is only good for one-way communication. Denial of service attacks, spamming, etc.

Having said that, no, an IP address mean nothing. A friend here in Canada recently received an infringement notice for downloading a torrent of “Sword of Shannara” in the middle of the night.

He’s 90 years old, living in a retirement home, and had never heard of bittorrent let alone “Sword of Shannara.” He has a single PC connected to his cable modem, no WiFi, no bittorrent client on his computer and no malware detected. There’s no possibility that the IP address claim was correct.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Older Stuff
13:40 It's Great That Winnie The Pooh Is In The Public Domain; But He Should Have Been Free In 1982 (Or Earlier) (35)
12:06 Norton 360 Now Comes With Crypto Mining Capabilities And Sketchy Removal Process (28)
10:45 Chinese Government Dragnet Now Folding In American Social Media Platforms To Silence Dissent (14)
10:40 Daily Deal: The 2022 Ultimate Cybersecurity Analyst Preparation Bundle (0)
09:29 A Fight Between Facebook And The British Medical Journal Highlights The Difficulty Of Moderating 'Medical Misinformation' (9)
06:29 Court Ruling Paves The Way For Better, More Reliable Wi-Fi (4)
20:12 Eighth Circuit (Again) Says There's Nothing Wrong With Detaining Innocent Minors At Gunpoint (15)
15:48 China's Regulatory War On Its Gaming Industry Racks Up 14k Casualties (10)
13:31 Chinese Government Fines Local Car Dealerships For Surveilling While Not Being The Government (5)
12:08 Eric Clapton Pretends To Regret The Decision To Sue Random German Woman Who Listed A Bootleg Of One Of His CDs On Ebay (29)
10:44 ICE Is So Toxic That The DHS's Investigative Wing Is Asking To Be Completely Separated From It (29)
10:39 Daily Deal: The 2022 Complete Raspberry Pi And Arduino Developer Bundle (0)
09:31 Google Blocked An Article About Police From The Intercept... Because The Title Included A Phrase That Was Also A Movie Title (24)
06:22 Wireless Carriers Balk At FAA Demand For 5G Deployment Delays Amid Shaky Safety Concerns (16)
19:53 Tenth Circuit Denies Qualified Immunity To Social Worker Who Fabricated A Mother's Confession Of Child Abuse (35)
15:39 Sci-Hub's Creator Thinks Academic Publishers, Not Her Site, Are The Real Threat To Science, And Says: 'Any Law Against Knowledge Is Fundamentally Unjust' (34)
13:32 Federal Court Tells Proud Boys Defendants That Raiding The Capitol Building Isn't Covered By The First Amendment (25)
12:14 US Courts Realizing They Have A Judge Alan Albright Sized Problem In Waco (17)
10:44 Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps (16)
10:39 Daily Deal: The Ultimate Microsoft Excel Training Bundle (0)
09:20 NY Senator Proposes Ridiculously Unconstitutional Social Media Law That Is The Mirror Opposite Of Equally Unconstitutional Laws In Florida & Texas (25)
06:12 Telecom Monopolies Are Exploiting Crappy U.S. Broadband Maps To Block Community Broadband Grant Requests (7)
12:00 Funniest/Most Insightful Comments Of 2021 At Techdirt (17)
10:00 Gaming Like It's 1926: Join The Fourth Annual Public Domain Game Jam (6)
09:00 New Year's Message: The Arc Of The Moral Universe Is A Twisty Path (33)
19:39 DHS, ICE Begin Body Camera Pilot Program With Surprisingly Good Policies In Place (7)
15:29 Remembering Techdirt Contributors Sherwin And Elliot (1)
13:32 DC Metro PD's Powerful Review Panel Keeps Giving Bad Cops Their Jobs Back (6)
12:11 Missouri Governor Still Expects Journalists To Be Prosecuted For Showing How His Admin Leaked Teacher Social Security Numbers (39)
10:48 Oversight Board Overturning Instagram Takedown Of Ayahuasca Post Demonstrates The Impossibility Of Content Moderation (10)
More arrow
This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it