New Law in California District Courts as to what constitutes “Copyright Infringement.”

Many things just happened in the Central District of California which no doubt will affect many (if not all of the Ingenuity 13 LLC cases, along with all of the Guava cases, and the AF Holdings LLC) cases. In short, California is no longer a troll-friendly place to sue defendants for copyright infringement.

Looking at Judge Otis Wright’s order yesterday in the Ingenuity 13 LLC v. John Doe (Case No. 2:12-cv-08333) case in the U.S. District Court for the Central District of California, we learn many new things about “the law of bittorrent use.” I’ll go over these in separate headers.

RULE 1. IN ORDER TO SUE A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE DEFENDANT DOWNLOADED THE ENTIRE COPYRIGHTED VIDEO.

I’ve always dumbed copyright infringement down into two elements: 1) “Access” to the copyrighted file, and 2) “SUBSTANTIAL SIMILARITY” to the copyrighted work.

Here according to the judge, a plaintiff catching a downloader in the act of downloading a file is no evidence that the file was actually downloaded. According to yesterday’s ruling, even a downloader downloading a viewable portion (e.g., a few second snippet of a copyrighted video) is still not guilty of copyright infringement until the amount of the file downloaded rises to a “substantial similarity” to the original copyrighted work. In traditional copyright law, this means an exact or substantially-exact replica.

Us lawyers have been bouncing around what we think a judge might rule, and so we have been playing with the possibility of maybe having a viewable portion of the file downloaded, but NO. Substantial similarity applies in copyright law to downloads as well (at least now in California federal courts), and according to this ruling, it needs to be proving that the entire copyrighted video (not a fragment, a snippet, or a snapshot) was downloaded. This would absolve roughly 99% of accused downloaders across the U.S. who started to download a file, decided not to complete the download, and who got sued anyway.

RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT

Here, all the evidence a copyright troll plaintiff has on a suspected defendant is that at a particular date and time (a “timestamp”), that particular IP address was engaged in the downloading of a particular copyrighted file.

Here, a “snapshot” of an IP address correlated with evidence from the subscriber’s internet service provider (“ISP”) that it was the subscriber who was loaned that IP address during that date and time the alleged activity took place is insufficient proof that the download actually took place. The defendant could have just entered the swarm and could be in queue to download his first byte of data. The defendant could be 10% done with the download and could have merely an unviewable fragment of the copyrighted video — hardly enough to rise to the level of “SUBSTANTIAL SIMILARITY” that is required in order to find a defendant guilty of copyright infringement. And, yet at the same time, that same snapshot could prove that the defendant is 99% complete in downloading the file.

The analogy the judge gives is taking a “snapshot” of a child reaching for a candy bar. In order to find someone guilty of copyright infringement, a plaintiff needs to prove that it is “more likely than not” that activity rising to the level of copyright infringement occurred. A snapshot places the defendant at the “scene of the crime.” It does not convict him for the criminal act itself, and usually this is all the evidence a plaintiff copyright troll can put together.

RULE 3. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST DO A “REASONABLE INVESTIGATION” TO DETERMINE THAT IT WAS THE NAMED DEFENDANT WHO DID THE DOWNLOAD, AND NOT SOMEONE ELSE WITH ACCESS TO HIS INTERNET CONNECTION.

We have known for a while that the Prenda Law Inc. model of naming defendants is 1) find out who lives in the household, 2) name the prepubescent male member of the family as the defendant. I am very happy to see a judge object to this tactic.

Similarly, EVERY LAWSUIT ACROSS THE U.S. where the copyright troll (plaintiff) has named the ISP subscriber as the defendant with no further investigation suffers from this same flaw. We have been saying for months that being an ISP subscriber (and coincidentally the one implicated as the defendant in these cases) does not mean that you were the one who did the download (nor were you responsible for all activities that took place on your internet connection).

The judge described steps a plaintiff could take to rule out the possibility that it was not someone other than the defendant who did the download. For example, they could drive up to the house and see if there is wireless access (to eliminate the defense that it was a neighbor); they could track multiple instances of downloading and correlate it with times and dates the defendant was home; etc. etc. etc.

There is so much more on this topic that I could discuss that in my opinion could kill every copyright troll lawsuit out there. In sum, merely citing that the IP address of the alleged infringer was engaged in an unlawful act does not mean that the ISP subscriber was the one who was engaged in that act. Failing to make that extra step of “putting the ISP subscriber at the keyboard at the time of the download” (or offering evidence to prove that it was the ISP subscriber who did the download and not anyone else) would be fatal to any lawsuit.

IN SUM, this was a great decision, and I look forward to it being adopted by federal courts across the country. But, before everyone starts calling and assuming that this is “the law,” I want to point out that in 99% of the states across the U.S., what exactly constitutes copyright infringement is still largely undefined.

As of yesterday, this order is now considered “the law” or more accurately “case law” which is binding in the California federal courts. However, as to the federal courts of other states, this ruling is merely “persuasive” (which effectively means “suggestive”). A judge of any other state can read this ruling and agree, or disagree. Obviously my hope is that judges in other states will read this opinion and adopt the rulings in their own states, but it is not “the law” until 1) Congress adopts a statute making this the law, or 2) judges in each state rule in accordance with this opinion, making “case law” one state at a time.

For more on this topic, Sophisticated Jane Doe wrote a great write-up on this case in her “Judge Otis Wright is fed up with Brett Gibbs’ and Prenda’s frauds, hints at incarceration” article. Anyone associated with the AF Holdings, LLC cases (or any of the others filed by Prenda Law Inc. [or their new "Anti-Piracy Law Group" entity]) should take notice of this ruling, and should file in your own case what is known as a “JUDICIAL NOTICE” informing your own judge of this order.

Lastly, no doubt Brett Gibbs might be in some serious legal trouble, and he might even face jail time for his actions in these cases for fraud upon the court. But, I hope the court recognizes that Brett Gibbs (as destructive as he has been to thousands of families over the past 2+ years) is merely local counsel to the larger “Prenda Law Inc.” entity who is run by players such as John Steele and his partners in his former Steele|Hansmeier PLLC firm.

Filed under: "Named" Defendant, AF Holdings LLC, Anti-Piracy Law Group, Brett Gibbs, California (CA), Copyright Trolls, Federal Criminal Law, Guava LLC, Ingenuity 13 LLC, IP Address /= Defendant, John Steele, Judge Otis Wright II (CA), P2P, Paul Duffy, Peer-to-peer, Prenda Law Inc., Sanctions, Steele Hansmeier PLLC, Torrent Tagged: AF Holdings, Anti-Piracy Law Group, Antipiracy Law Group, Brett Gibbs, copyright infringement, definition, Ingenuity 13, Prenda Law Inc.



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