elf-man.narIt’s not some kind of J.R.R. Tolkien scenario. But a federal district court effectively has united what netizens have termed trolls with some aggressive elves from the magical realm of Hollywood — and the judge has waved a wand and told both that their legal tactics with mass lawsuits against John Doe defendants need to get better or disappear. OK, Gandalf, this is a Hobbit-sized bit of good news for those who download entertainment surreptitiously but it surely will be displeasing to the wizards of content creation, including mainstream film-makers in Hollywood and porn shooters in the Valley.

The latest developments start in in March 2013, when the makers of the box-office hit Elf Man sued 152 Doe defendants, identified only by an IP address linked to the online sharing of the movie. While a federal district court granted the elves’ motion to initiate discovery to unmask the IP address, U.S. District Judge Robert Lasnik warned that “it is not clear that plaintiff could. . .  make factual contentions regarding an Internet subscriber’s infringing activities based solely on the fact that he or she pays the Internet bill.” Meaning because home wireless networks can support multiple computer devices, unmasking an  IP is not enough to prove infringement. His ruling, though it involved BitTorrent, a particular bane of Hollywood, is in keeping with what has come down from courts in other similar legal kerfuffles. Hit the rewind button on some previous posts just at this site and it’s clear that the judiciary has been none to keen about mass lawsuits with Doe defendants, as was noted here, here and here. And while the movie industry has had its major disputes with BitTorrent in particular, the courts have viewed especially dimly the efforts of porn purveyors and their counsel to embarrass those who download blue content and to get them to settle out rather than have their identities disclosed in mass lawsuits seeking names ties to IP addresses.

Still, this approach has its appeal, as is clear with the elven ones and their attorneys. On Oct. 3, 2013, these plaintiffs filed an Amended Complaint naming eighteen individual defendants and four filed a motion to dismiss arguing Elf Man’s allegations failed to state a claim for relief because there was not enough evidence to support a claim of copyright infringement. The plaintiff’s shot back that defendants either directly stole the material or facilitated the infringement.

The elvish evidence, thus far, has been that the named defendant pays for the net access used to download-distribute the movie in dispute. While it is possible that the defendant participated in the BitTorrent usage, it also is possible that it was a family member, guest, or a freeloader.

So the court said evidence of the following may be sufficient for a claim of direct copyright infringement:

  • Defendant has the BitTorrent application on his/her computer or
  • The download/distribution is linked to that individual, or
  • Even that the defendant has acknowledged personal involvement.

Merely connecting an IP address is insufficient for a claim of direct copyright infringement.

While plaintiffs claimed indirect infringement of copyright by not securing their internet service from illegal conduct, the court held that Elf Man had no allegations of intent or knowledge to support the a claim for contributory infringement.  Lasnik allowed plaintiffs time file a second amended complaint and it is unclear if they have done so.

Meantime, Jason Acuna, popularly known as “Wee Man” of the improbably popular cable television show Jackass denies involvement in the lawsuit even though he is prominently featured in the legal paperwork.

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