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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.'"
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.
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.
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. In previous cases I've read about, there was other evidence, such as the infringing material being found on the defendant's computer, or usernames related to the person's real name.
Similarly, a gun registration doesn't mean the owner's automatically responsible for any crimes, but it does certainly put the owner under suspicion, and may be probable cause for a more thorough search.
You do not have a moral or legal right to do absolutely anything you want.
If he is significantly rural, he might not be running a wifi password at all. My brother's wifi is barely accessible outside of his house, let alone the .75 miles between his house and the nearest public road, so he does not bother with it.
In comparison, I keep a strong wifi password, as I just found out that my wifi is line-of-sight accessible from the picnic pavilion in the park across the street (literally line of sight, the router is in the living room with only a few panes of glass between).
SJW: a person who perceives an injustice, and while correcting it, commits a greater injustice.
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.
A single IP can be used by many people at the same time. Some of them can even be out of sight of each other. This doesn't hold true for guns.
With Carrier-grade NAT, a whole lot of people may be using the same IP address at the same time, and they wouldn't even have to be in the same state...
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
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.
And what if you loan out your hunting rifle to your friend to go hunting, and they end up murdering somebody with it, should you be held responsible? What if you loan your car to your friend to go grocery shopping and they end up running a red light and killing somebody, should you be liable? I think only if you have a reasonable belief that the individual might use it for that purpose. How about if somebody steals your car or gun and does the same?
One problem with WiFi is that you don't necessarily know if somebody else is using it. In the case of a car or a gun, you generally know if it gets stolen because it's not where you left it. Sure, you can lock your doors, but somebody can always break a window. With WiFi, sure, you can always click the little password checkbox, but it's still not hard for somebody to break into it. In most situations (that is, most people with most setups) they're not going to be able to tell if somebody else was using their WiFi.
Another car analogy...if your car runs a red light with a red light camera, or speeds and gets caught by photo radar, if somebody else is driving your car then should the burden of proof lie on you to prove somebody else was driving, or on law enforcement to prove you were driving?
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.
Actually it is valid. Wifi can hacked into and used without permission to download copyright protected content (you can't pirate content as Piracy involves ships and water. No matter how much mainstream media wants you to believe you can) That is what amusing me about your point. Guns can indeed allow engagement highly illegal activities like murder, theft, kidnapping and rape. Wifi can allow pedophilia, ID theft, collaspe essential servers that control electricity, water, sewage etc which can lead to death and destruction. It was proven that a computer virus allowed the destruction ot the centrifuges that were processing the uranium for the iranians. So both can cause the same among of chaos. Actually in the right location at the right time, a open wifi point could cause more mayhem than a marksman ever could.
"stolen wifi" can't kill a clerk at the convenience store...
Michael J. Ryan - tracker1.info
I have two wifi points. One permits access to my network and is highly secured, encrypted, mac filtered, yada yada yada The other is an unencrypted point that only has access to the internet for guests to use and no internal network access. I give the trivial password to anyone who visits so they can connect their phones, laptops, tablets etc to it. The **AA can be as surprised as they like, I'm not bound by their concept of how wi-fi should be configured.
Warning: Teh poster of this messaeg is lysdexic
if someone accused YOU of downloading Justin Bieber - Baby.mp3 yesterday, could you prove you didn't?
No, but I could plead insanity.
My state has no gun registration.... on purpose. Private person->person sales are just peachy and require no registration. Purchases at a gun store are registered so the gun shop owner can keep his FFL but after initial purchase, guns can be sold time and time again and end up in some pawn shop somewhere. And ya know what? I like it that way.
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/
No, the judge forbade them from going on a fishing expedition to try to make their case based on nothing other than an IP address.
Lack of evidence isn't a basis to get a subpoena to gather more evidence. It means you lack evidence.
No, the judge correctly identified that they haven't done any useful investigation, and that they need something more substantial to file a lawsuit.
Or do you think that if I loudly accused you of embezzling money you should be immediately arrested and your stuff searched to provide evidence that what I said is true? I suspect you'd demand that I show evidence first. These guys are asking to be provided with evidence for their accusations, but haven't provided enough to support the claim.
The judge hasn't hampered the case of the plaintiff, he's told them they haven't established one with anything they can link to the named individual. It actually puts the burden of proof on them, which is the way it should be.
Lost at C:>. Found at C.
How many gun owners let other people use their guns?
Nancy Lanza did.
Moral of the story: secure your weapons better than your Wifi.
From the opinion:
However, the Court is concerned about the lack of facts establishing that Defendant
was using that IP address at that particular time. Indeed, the FAC does not explain what
link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued
Defendant because he is the subscriber to IP address 68.8.137.53. (The Court notes that
it is actually unclear whether the IP address is registered to Defendant). As recognized by
many courts, 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.
Basically the plaintiff needs to subpoena the ISP for logs indicating that the IP was assigned to the defendant at the time of the alleged infringement. The IP alone will not be considered proof. Hopefully this stands on appeal on the basis of common sense.
I am becoming gerund, destroyer of verbs.
What if the case involved a home owner? Someone got killed in a backyard, so the owner of the house has to be the one who's guilty. No trial needed.