This guest post was written by Crystal R. Nobregas, a Southwestern Law School fourth-year evening program student who is taking the Entertainment Law and the Emerging Web class.
For any internet users who may be saddled with naughty kids, n’er do well drop-in nephews, or neighbors who employ sneaky tech to “borrow” their wi-fi without permission or paying for it, federal appellate judges in California have sent a small but key message recently: Got your back, man.
That’s one way to look at the decision this fall by the U.S. Court of Appeals for the Ninth Circuit, which delivered a blow against those who may have looked at a too-easy means, purportedly, to crack down on those who may try to purloin digital materials.
The federal appellate judges affirmed a lower court’s dismissal of a lawsuit by Cobbler Nevada LLC against Thomas Gonzales. He was the owner of an IP address used to illegally download The Cobbler, an otherwise eminently forgettable and poorly reviewed 2014 film starring comedian Adam Sandler.
Though Cobbler Nevada holds the movie’s copyright and lit after Gonzales with an infringement claim, the appellate judges disagreed, concluding that a “bare allegation that a defendant is the registered subscriber of an [IP] address associated with infringing activity is [not] sufficient to state a claim for direct or contributory infringement.”
Now, there’s a big and genuine argument to be made that, unlike other forms of copyright infringement, digital piracy has gained a widespread social acceptance and has gotten out of hand. Too many netizens seem to have disassociated the act with the label of copyright infringement or theft altogether, and some even speak openly about it as if it were not those things. Although most still do “make the distinction between piracy for personal use and piracy for profit,” which the majority find to be unacceptable, digital piracy is a financial drain and a bane for creatives and companies — especially movie studios and music companies — that rely on their content.
That said, the appellate judges noted that Cobbler picked a peculiar internet user case to pursue with such zeal. Gonzales, in Portland, Ore., was the IP address owner, but the net service in question was for an adult care home. He apparently blew off Cobbler’s attempts to contact him about what the company asserted were multiple illicit downloads of its product.
Later, Gonzales and the facility tangled with Cobbler over disclosure of information about the identities of workers and residents at the home — many of whom had access to the facility’s net service. The defendant, citing privacy and First Amendment concerns, told Cobbler to use a little shoe leather or figure other ways to obtain the contested information.
Gonzales eventually stood as the sole named defendant, with assertions of infringement targeted at him just because his name was listed as the IP address owner. A federal magistrate gave the complaint the boot, as the appellate judges now have.
The ruling, which also upheld the award to Gonzales of attorney fees, may be yet another discouragement to plaintiffs without sound infringement cases to pursue defendants based on IP addresses alone. The practice has been legally fraught for a while, especially because of the notoriety attached to it, notably in mass John Doe lawsuits, due to the activities of the now notorious Prenda Law firm.
Prenda, in cases involving dozens of little-identified defendants at a time, sued internet users with a taste for blue movies in what one appellate judge, he a Southwestern Law alum, described as a “legal shakedown.” The firm knew that, rather than risk embarrassment over their naughty viewing habits, defendants, especially if the courts forced internet service providers to identify them, would “settle” with Prenda and its purported porn movie maker clients for hundreds of dollars each or more. Prenda partners since have sanctioned, criminally charged, convicted, and jailed for their schemes.