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.'"

Comments

On Appeal

[gpmanrpi]

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.

More evidence

[MobyDisk]

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.

Re:More evidence

[HaZardman27]

Doesn't that make it pretty much impossible to file a copyright infringement claim against someone for downloading a file?

Oh gosh, we can only hope.

Re:More evidence

[gstoddart]

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?

It needs to be made more difficult, and there needs to be some burden of proof shifted to the accuser.

So many of these they seem to send the "you've been caught downloading, pay us this much money and this goes away" extortion letters, or they file the John Doe lawsuits to get the subscribers names, and then sue them that way. They just go with presumed guilt, and make it impossible for someone to defend themselves without bankrupting themselves.

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.

It doesn't need to be completely impossible ... but there does need to be some actual evidence beyond "I have your IP address, therefore it was you" stuff they do now. They've been trending too much to the point where they can claim anything with no real evidence, and the courts follow along.

Re:More evidence

[taucross]

Fairness happens through a strict audit chain of deductive evidence. An IP address is not a way of identifying criminal liability. This is a fact, no matter how unfair it may seem. It can identify a person, yes; the account holder. But it does not then follow that the account holder is culpable. Do you think it is better to convict an innocent person, or to let a guilty person go free? The question is deeply philosophical and most tantalising.

Re:If these cases involved guns....

[Marxist Hacker 42]

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).

Re:If these cases involved guns....

[Spiridios]

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...

This is big

[NewYorkCountryLawyer]

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.

Re:This is big

[QuasiSteve]

This ruling is not just huge - if upheld all the way, this could be the death knell for any hope of enforcing copyrights where it comes to individual users/distributors as long as the internet or structures like it (a potentially shared resource as the only identifying element) is involved.

This is basically me, downloading all of the movies currently on offer on TPB, putting them on a server, and seeding them for as long as that system will last, sharing these movies with hundreds of thousands of people during the course of its operation, with there being nothing for the copyright holders to even start forming litigation around short of a John Doe; which doesn't get them very far if a judge is just going to say "who is John Doe?" and the answer is "we don't know, that's why it's a John Doe."

They can write to my ISP, and even my ISP would have to concede that while the complaining party may very well have an IP address and a timestamp, and my ISP may very know which account that is assigned to, due to the fact that even my ISP doesn't know who - in terms of a legal entity - actually used the account.

At worst, my ISP has a clause saying that the account may be closed if they have a reasonable suspicion that I am indeed performing the above - but they'll likely still try to shy away from doing so.

The question is, how is this going to be countered? If there's one thing we've learned over time it's that the copyright holders will not just let the inevitable come easy.

Will laws be constructed, or (re)interpreted, such that the account holder can be held legally accountable for that which is done through the account? Will only authorized modems be allowed on ISP networks with users wishing to use these modems required to use a token that identifies the person per-packet up to the ISP and make them legally responsible to take great care that this token remains only with them? If this, will lobby groups (and I'm not just thinking of 'big content' here) then push to have this per-packet identification be sent out across all of the internet so that infringement of all sorts can be dealt with directly?

Yes, this is a victory on many levels for the great majority of internet users (albeit just a little more for 'pirates' who stand to benefit the most). Just don't be surprised if it's going to get worse long before it's going to get better.

That said, there's that 'if' at the top of my comment. That's a big 'if'.

On a side note: Good to see you again, NYCL - it's been a while.

Re:This is big

[NewYorkCountryLawyer]

Moby, the thing is you're supposed to have done an investigation BEFORE bringing a federal lawsuit. When a lawyer signs his name to the complaint he's affirming that he's done that and has EVIDENCE that the DEFENDANT committed a copyright infringement.

In the federal rules there's no procedure for bringing a lawsuit against someone to give yourself the ability to conduct an "Investigation" with all the coercive powers of a court at your disposal.

This judge just called the plaintiff's lawyer's bluff, which is why the lawyer put his tail between his legs and ran.

Re:Not yet

[NewYorkCountryLawyer]

BTW, after this ruling, the plaintiff withdrew the entire case. Probably hoping to find a less intelligent judge somewhere else.

IP Address, Car...

[Wolfling1]

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.

Re:If these cases involved guns....

[ThomasBHardy]

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.

Re:while forbidding the only means for doing so.

[gstoddart]

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.

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.

Therefore the judge forbade the Plantiff from doing any useful investigation.

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.