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Troll Complaint Dismissed; Subscriber Not Necessarily Infringer
NewYorkCountryLawyer writes "The courts are finally starting to get it, that the subscriber to an internet access account which has been used for a copyright infringement is not necessarily the infringer. In AF Holdings v. Rogers, a case in the Southern District of California, the Chief Judge of the Court has granted a motion to dismiss the complaint for failure to state a claim where the only evidence the plaintiff has against defendant is that defendant appears to have been the subscriber to the internet access account in question. In his 7-page opinion (PDF), Chief Judge Barry Ted Moskowitz noted that 'just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity.'"
Great news!
Want a simple correlation? If you force gun owners to register their purchase, and then hold the registered owner responsible for any crimes committed with that gun. Bring that up in a trial and then get your popcorn as your local politician tries to explain his loyalty to both sides.
Now we just need a catchy slogan for his Presidential campaign in 2016 where he captures the all-important tech vote.
This needs to be held up on appeal to the 9th Circuit Court, and we can celebrate. Otherwise this is a smart District Court Judge's ruling that is only persuasive in other cases.
Many ISP's terms of service hold the subscriber responsible for any activity coming from the IP addresses that they are leasing to the subscriber, and can in those cases still be held civilly liable (albeit not criminally).
File under 'M' for 'Manic ranting'
Wow? What a revelation this is indeed.
That's what people have been saying for over two decades... Glad common sense has won out on this one.
We have finally gotten some of it! This is a great first step in making the Corps that are issuing these lawsuits to actually do their investigation.
Now, if this passes, they may try to pass laws to make the subscriber responsible (can anyone say Unprotected Wifi laws?)... which will be the never ending fight.
Is this really something to cheer about? Rah rah yay evil copyright trolls defeated! But wait... is this really fair?
The judge's ruling states that an IP address isn't sufficient information to bring a claim, and that discovery is not permitted. Doesn't that make it pretty much impossible to file a copyright infringement claim against someone for downloading a file? The only way I can think of to tie an IP address download to an individual would be to look at the hard drive of the computer to determine if the file was ever there.
The judge also points out that the owner of the wireless network is under no legal obligation to protect their wireless network from someone else using it. So it upholds the wireless network claim, although it wasn't used in this decision.
I am no fan of the copyright trolls, but I don't think making it completely impossible to track down copyright infringement cases is fair either.
Last note:
The judge granted the motion on one of three counts brought against the individual. They can refile on the first two counts if they can find a way to identify the individual, not just the IP address.
If I knowingly loan one of my guns or vehicles to someone I know, or should know, to be a problem, I would expect to be held liable to some degree. If, however, someone steals one of these things or otherwise accesses them without my permission, the liability is theirs.
This isn't a particularly big deal. The "IP address isn't a person" argument has been brought up in cases before, but it's just never mattered
It would be absurd to even insinuate that an IP is a person. From what I know, an IP doesn't have "life" or a "state of mind," so how can it be a person?
An IP in this context could be used to narrow down a set of suspects. In other words, it's just a set of numbers, right?
The pdf states that only claim 3 (negligence to secure ones internet connect) was dismissed. Claims 1 and 2 were deferred back to the plaintiff to provide more evidence to provide the claim that the defendant commited infringment and willingly redistributed copyrighted material. They plaintiffs have 20 days from the ruling to provide thsi evidence.
This ruling is huge.
Ever since I first got involved in fighting the RIAA's litigation campaign, and blogging about it, in 2005 [that's almost 8 years ago] I've been arguing that it is not a sufficient basis to bring a lawsuit against someone that an internet access account for which he or she pays the bill was used by someone for a copyright infringement. Even though I, and lots of other lawyers, and lots of other techies, and lots of other people from all walks of life knew this, I have never -- until this ruling -- seen a JUDGE dismiss a complaint because of this.
If those of you who are saying this is "not a big deal" or "was expected" know of any prior decisions like this, please show them to me. Otherwise, STFU about it not being big. After about 10 years and hundreds of thousands of frivolous lawsuits, finally a judge has pointed out that the Emperor is wearing no clothes.
It is one of the most newsworthy copyright posts I have ever seen on Slashdot.
Ray Beckerman +5 Insightful
Even a broken clock is right twice a day (yeah you know where you can stick that digital watch too).
Now get off my lawn.
File was opened Open]BSD. How many
How can you prosecute someone for infringement based on an IP address? IP address doesn't mean jack sh*t. Unless you have the person's computer with the infringing file, and video of them using said computer at the time the file was downloaded/uploaded, it shouldn't be possible to convict somebody of infringement.
If you substitute the word 'Car' for the words 'IP Address', the ruling reads:
'just because a CAR is registered to an individual does not mean that he or she is guilty of infringement when that CAR is used to commit infringing activity.'
A whole bunch of 'speed camera law' is in exact opposition to this ruling.
I think that the ruling is positive and constructive - but I also think that it will be overruled at a higher level for the exact same reasons that the speed camera law is in place.
The MPAA/RIAA when sponsoring the creation of the copyright law change in New Zealand, managed to get it passed that the SUBSCRIBER is the person legally responsible for what happens on the account, no matter what...
and if that's not bad enough, if you're accused of downloading a file, a correctly filled in complaint form from the IP holder is deemed sufficient proof the offense occurred (3 strikes btw)... i.e, if someone accused YOU of downloading Justin Bieber - Baby.mp3 yesterday, could you prove you didn't? I certainly haven't found someone who has figured out a way
But that does nothing about TANGIBLE property law being applied to the metaphor for property that results from IP laws, or the court system being wielded like a cudgel to prop up an obsolete economic paradigm, namely physical media acting as the gatekeeper for possessing the content that was, once upon a time most efficiently distributed on it.
I wonder if we'll see a day when you're not allowed to THINK about a song or a movie or a book, without having paid for the right to do so. A snippet of a song plays in your head, and you get a bill e-mailed to you. You quote a line from a movie in a private conversation with a friend, you get a bill, and if you don't pay, you get hit up with a suit for "infringement".
Too bad bribery is legal in this country, as long as they use the word "lobbying" to describe it. Maybe if it weren't, we wouldn't have these fucked up laws. Even if they're only debating them, the insult and injury are done by the fact that we pay these politicians their wages, and in exchange for their pay, they debate how best to subjugate us and strip us of our rights. Wish the states paid them, not the federal government, then each state could vote on what percentage of the established maximum to pay their legislator, based on his/her attendance and performance. Ah, to live in an idea world...
This part of the decision applied only to claim 3 of negligence, which was dismissed, not to claims 1 & 2 of copryight infrigement, which were held pending further information. It appears to nix the notion that individuals are required to police Internet connections for which they subscribe, and take liability for the behavior of other users.
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/
While this is a great ruling, I've noticed a recent pattern: most of the cases where judges have come down hard on copyright trolls do not involve material from major studios. They involve pornography, often gay pornography. There are quite a few of these cases chronicled on TorrentFreak. I wonder to what extent the judges are letting their disgust of the underlying material come through in their rulings. Would they be making the same rulings if these people were accused of downloading mainstream music or films?
That said, these precedents can probably be used in other cases, even against major studios, since there is no legal distinction between large and small copyright holders and no copyright-relevant distinction between pornographic and non-pornographic content. I'm willing to take victories against the monolith of "IP" wherever they are available.
I hunted through the judge's decision, and could not find where he forbade discovery. I found that he required some alleged facts actually connecting the defendant to the alleged infringement. He didn't require evidence at this stage, merely a statement of a plausible specific claim that the Plaintiff possessed some evidence associating the Defendant with the alleged copyright infringement. From the judge's decison, a footnote:
It appears to me that the judge was requiring Plaintiff to explain in a bit of detail the reason for associating the defendant with the alleged copryight infringement. Elsewhere, the judge mentions that the Plaintiff has not even alleged specifically that the IP address in question is associated in any particular way with Defendant:
So, it appears (pending a reading of the complaint, to see whether the judge described it correctly) that Plaintiff sued Defendant, mentioned "68.8.137.53" as though this were relevant, but did not explain the connection between that number and Defendant, and the judge required an explanation. There is more in the decision to indicate that a mere registration of the number would not suffice, but no indication at all that Plaintiff's ability to discover additional facts is actually inhibited if they can provide a plausible explanation.
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/
Well, I do know what "discovery" means (Wikipedia entry). The judge indicated that Plaintiff had not explained allegations well enough to justify certain types of discovery. By no means did he say "that they are forbidden from obtaining any more evidence or doing any more research." "Discovery" means requiring others, including the opposition, to deliver information that may support the case. Plaintiff had, and was apparently already using, other means of obtaining evidence and doing research. As I understand the decision, Plaintiff must explain a plausible case well enough to justify placing that burden upon others, and the judge ruled that Plaintiff had not done so.
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/
I have hunted the 7-page decision in vain for the spot where the judge forbade Plaintiff "to do any investigation that would help ... ." The judge merely required Plaintiff to mention some alleged facts that, if proved, would associate Plaintiff with the alleged copyright infringment. According to the decision, Plaintiff merely mentioned an IP number, and did not even claim that it was associated with a service subscribed to by Defendant. Plaintiff was at liberty to do all sorts of other investigation, or merely to share with the judge the details of earlier investigation. Until then, the Plaintiff would be unable to demand that Defendant or other parties (such as ISP) do the investigation for Plaintiff under the rules of discovery.
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/
The only way that a Plaintiff could obtain the evidence needed is with a subpoena. The judge dismissed the case before allowing any subpoenas to occur. Therefore the judge forbade the Plantiff from doing any useful investigation.
That's not what the decision says. The judge did not dismiss the 2 copyright infringment claims. He did not require evidence. He required before proceeding that Plaintiff reveal information, which Plaintiff claimed to possess already, linking Defendant to the IP number. Plaintiff dropped the suit without revealing that information. Subpoenas are by no means neccesary for all forms of investigation. There was no indication of a request for a subpoena of ISP registration information. The judge noted that Plaintiff had not even stated that the IP number in question was registered in any way to Defendant. Accepting the judge's statement (I did not check it against the actual complaint), Plaintiff merely mentioned the IP number, alleged that it was involved in an alleged copyright violation, accused Defendant of that copyright violation, but did not even mention any alleged connection between Defendant and the IP number, much less any other detail regarding Defendant's actual behavior. The judge did not require evidence, merely plausible statement of the evidence that Plaintiff expected to produce.
Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/
Two people can't use the same IP address at the same time either - your packets are interleaved.
It just so happens that your packets are interleaved on the microsecond scale while gun use is interleaved on the order of hours/days/weeks.
paintball