California District Court Decides on the Definition of Copyright Infringement as to Bittorrent Downloads

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) would still NOT be 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 that copyright infringement happens when the downloaded file becomes substantially a “copy” of the entire original work.

Us lawyers have been bouncing around ideas as to what we think a judge might rule constitutes copyright infringement with regard to internet downloading and bittorrent use, and so we have been playing with the possibility that maybe having a viewable portion of the file downloaded might be sufficient, but NO. Sticking to black-and-white copyright law, the “substantial similarity” element applies in copyright law to bittorrent downloads as well (at least now in California federal courts), and according to this ruling, a plaintiff needs to demonstrate 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 leased that IP address during the date and time the alleged activity took place] is insufficient proof that the download actually took place. The defendant could have merely 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 in his possession 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 refer to a defendant having a download which is 99% complete.  A snapshot of an IP address in a bittorrent swarm is simply not conclusive that the downloader infringed the copyright.

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 unlawful act itself, and usually this is all the evidence a plaintiff copyright troll compiles when tracking a bittorrent swarm.

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 sad to say that the Malibu Media, LLC and the Lipscomb cases appear to be following the same trend with their exculpatory letter “scare” strategy.  I am very happy to see a judge object to this tactic.

I want to point out that 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, the plaintiff could drive up to the defendant’s 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 them 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 an IP address assigned to the alleged infringer was engaged in an unlawful act does not mean that it was the ISP subscriber (the one paying the bills) who was engaged in that unlawful act. Failing to take 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 himself who did the download, and not a neighbor or someone else in his household) 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 when it comes to internet downloading via peer-to-peer networks 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 ruling in their own cases, but it is not “the law” until 1) Congress passes a statute which the Senate ratifies, and the President signs it into law, or 2) judges in each state rule in accordance with this opinion, making this “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 their own cases what is known as a “JUDICIAL NOTICE” informing each 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.


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8 thoughts on “California District Court Decides on the Definition of Copyright Infringement as to Bittorrent Downloads”

  1. the “snapshots” they have are not snapshots of “infringers” downloading the film in question, but rather a snippet of them UPLOADING one. none of these complaints say the defendant downloaded anything iirc. their whole operation is designed to prove distribution, hence the upload. the declarations always say that the investigation firm downloaded FROM the user, thus alledging the distribution. if it was the other way around it woud be an obvious honeypot. and since some versions of bittorrent often show how much of the file certain “peers” have it would be very simple to show who has a full copy, and so all they would need is a snip of the file to show that it is the original. so this order does very little to disuade against the “technical” parts of the case, but even putting this asside it is still a monumental order.

  2. I have a feeling that Gibbs is a bit more than local counsel at this point, and for his sake I hope he is. Pretenda is going to want someone to fall on the sword and keep the courts from looking deeper. If Gibbs is unable to offer up anything to deflect the full ire of the court it will not be pretty for him.
    I do hope that this case gives pause to the courts to make sure that the i’s are dotted and the t’s are crossed. There are many issues in these cases and what appears to be more outright fraud that seems to go unpunished. Hopefully some of what is happening now will get more indepth dissection of this business model and the players working it.

    1. It will be interesting to see if they can make a connection to Florida’s proceedings on this matter, since Steele was caught advising from the sidelines. I too agree that Gibbs seems to be a bit more than local counsel. He has a damn good idea of what he’s been involved in, which is why he’s trying to weasel his way out without providing specifics for the defense’s discovery.

      Hopefully more will follow Judge Wright’s ruling. It’s about time a judge caught wind of Prenda’s true intentions and attacked their “business model”.

      1. Prenda local counsels throughout the country have been providing Gibbs’ email address instead of their own on court documents and correspondence. I don’t know which locals in which states but maybe SJD or Raul will be able to provide the details; I remember one case in particular where after the Prenda/Alan Cooper business was brought up by a defendant the local counsel attempted to argue that Prenda had nothing to do with the case, he and only he was Plaintiff’s counsel, and he conveniently updated his email in future filings…

        This all suggests Gibbs is perhaps practicing law without a license in states other than CA (the only state where he is licensed), but at minimum he is acting as a manager and go-between for other local counsels. Gibbs was one of the first franchise operators for Steele and it is clear that he is more than a contract lawyer-for-hire, almost certainly on the payroll and likely aware of and complicit in the organization of Prenda’s web of shell businesses, although I would be surprised if he knew the full extent of Steele’s unscrupulousness. I suspect the Alan Cooper fraud was a surprise to Gibbs, IMO this comes through in the panicked, rambling, unprepared and idiotic responses he gave to local counsels and courts regarding the issue (“I am sure there are hundreds of Alan Coopers in this world!”). Now we know Gibbs has claimed to have a notarized original copy of documents signed by Cooper—ruh roh!

        IMO if anyone but Steele knew about that little fib, they would have been smart enough to have a back up plan and prepared response to the very questions that have put Gibbs in the spotlight. The kind of information he is being asked to provide regarding the real Alan Cooper who runs AF Holdings and Ingenuity 13 is basic stuff, should have presented absolutely no problem for an attorney representing a real company with a real CEO, and even given Gibbs’ history of massively screwing up his CA cases and setting precedent that interferes with Prenda’s further trolling attempts, I think only John Steele is stupid and arrogant enough to think he could bluff his way through ID theft without even bothering with a cover story and backup plan.

        Considering Gibbs has not been super-successful, and his bumbling in CA arguably led to the downfall of mass-Doe cases nationwide, it is a mystery why he is trusted as a capo, so to speak. I think it’s fair to assume that in many cases, when Gibbs’ email is passed around by local counsels, that is a shared email account that Steele uses and in many cases Steele is the one responding and perhaps even filing documents using the other attorneys’ ECF accounts.

        Isn’t it interesting that Gibbs is the one in this go-between role and not Paul Duffy, the nominal owner and founding partner of Prenda? I wonder why Gibbs. Duffy’s involvement has been awfully sporadic and on the whole he seems to do the least actual work of anyone involved with Prenda, including the obscure local guys who seem to have no idea what they got themselves into. I’m sure there’s a story there, I wonder how Gibbs and Steele got hooked up, how Steele convinced Duffy to put his name on the scam, and why Gibbs has been sticking with Steele especially now that it looks like they are involved in outright criminal fraud. But I guess I’ll have to wait for their American Greed episode before I get the whole story.

        It is very good news that Gibbs is the guy facing so much potential trouble. This is a guy who two years ago was filing copyright infringement lawsuits in CA courts for works that had not been registered. His filings claimed applications had been filed, and asked for statutory damages (which require the registration) and it was all BS. One of those cases spawned the Abrahams vs. Hard Drive Productions, Inc. lawsuit. So Gibbs has been at this for a while, has lied to the CA courts outright, repeatedly, and of course there’s the usual Prenda stink as well. Being deep into the scam and close to Steele as a trusted Lt. means putting the screws on Gibbs could have serious repercussions for Steele and the rest of his scam. At the very least if Gibbs gets crucified it will be even harder for Steele to find local counsel willing to risk their careers on his behalf.

  3. So what if my case with AF holdings has been settled ie I paid them to leave me alone? Should/can I still file a judicial notice?

    1. Josh, quite frankly, I hope you did not settle your case (especially considering the encyclopedia of issues surrounding it). However, no. There is no reason to file judicial notice with your case, as you probably want to keep your settlement as anonymous as possible from the public (i.e., future employers, children, etc.). Have your attorney speak to your plaintiff attorneys and tell them to file a dismissal with prejudice as to your “John Doe” identity.

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