A Legal Blog by Aaron | Sanders, PLLC

RightsCorp’s Lawsuit Against Cox Is Only Partly About Repeat Infringers

RightsCorp Has Some High Hurdles to Clear Before it Even Gets to Repeat Infringers

Typical. I read about a truly significant lawsuit, start blogging about what is obviously the main issue—an issue that has significance beyond the lawsuit—only to discover in analyzing the pleadings that the lawsuit isn’t all it’s cracked up to be.

RightsCorp: A Business Model in Trouble…

You’ve heard of the lawsuit against the major ISP, Cox Communications, for violating the repeat-infringer requirement of the DMCA? (Here’s the complaint.) If not, let me ’splain. No, there is too much. Let me sum up:

There is a company called RightsCorp that is in the business of enforcing copyrights for others. They make money by monitoring BitTorrent networks, finding files whose copyrights belong to its clients, identifying the IP address (and timestamp) and sending short little notices to the ISP that are supposed to be forwarded to the customer. The short little notice says the usual things that lawyers say in cease-and-desist letters that aren’t lies but don’t tell the whole copyright story, to wit: (a) you are a copyright infringer; (b) you “could be” liable for up to $150,000 per infringement; (c) your ISP service “could be suspended”; and (d) the actual…

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Eastern District Tennessee Severs BitTorrent Lawsuit

BitTorrent Swarm ≠ “Transaction or Occurrence”

I used to blog about BitTorrent lawsuits quite a bit, but dropped that in favor of folks who blogged about them much more comprehensively. But there was one BitTorrent lawsuit that I’ve been following pretty carefully because it’s in Tennessee: Dragon Quest Productions, LLC v. Does 1-100, Case No. 3:12-cv-597. The judge* in that case has just severed the case from one case with 100 defendants, to 100 cases with one defendant each. And that’s pretty significant.

* I’m linking to the magistrate’s “Report and Recommendation,” but the judge accepted it in full.

A quick primer about BitTorrent lawsuits. Usually, the plaintiff is the owner of the copyright in either (a) a pornographic film, or (b) a non-pornographic film that didn’t do so well at the box office.* Dragon Quest LLC is definitely in the latter category, its movie, Age of Dragons, having bombed at the box office, despite somehow starring Danny Glover. In either case, the idea is to settle with as many defendants as possible for what lawyers call “nuisance value,” the amount the defendant is willing to pay to avoid the expense and hassle of a lawsuit**. Since the defendants are ordinary…

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You’re No Fung Anymore: There Really Is Such Thing as Red Flag Knowledge in Copyright Law

Also, There Really Is Such Thing as Copyright Inducement

Hot on the heels of the new and improved opinion in the Veoh case (discussed last time), we also have Columbia Pictures Industries, Inc., et al. v. Gary Fung & IsoHunt Web Technologies, Inc., another important 9th Circuit decision construing the major DMCA safe harbors. We’ve actually discussed the case before because it was—and as far as I am aware—the only case in which a service provider was found to have had enough “red flag” knowledge to be deprived of the DMCA safe harbor.

The rare yellow-bellied sapsucker is a close relative of the even rarer red-flagged sapsucker. Photo by Phillippe Boissel, under Creative Commons license.

The Red-Flagged Sapsucker

I’ve said previously that “red flag” knowledge will be found only in extraordinary situations, and nothing since then has changed my mind. The problem is that “red flag” knowledge is clearly objective knowledge (in contrast to the subjective nature of actual knowledge). Lawyers are actually used to these standards, more classically stated as “knew or should have known.” In many cases, knowledge requirements are important, but even so, we don’t like to limit them to purely subjective knowledge because it becomes too easy…


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The Laws, They Changed Them? Maybe Pornographers Are Ruining it for Everyone

But Not for the Reason You Think

In the first part of this series, I asked whether pornographers are ruining it for everyone. Not all of the BitTorrent plaintiffs are pornographers, of course, but most estimates I’ve seen show that more of them are. A concern that a rights holder might have is that the strategy of suing mass numbers of anonymous BitTorrent defendants is already an aggressive strategy and requires a lot of cooperation from the court. With the addition of pornography to the mix, courts might find reasons to interfere with the process enough to make the strategy unprofitable for non-pornographers.

Not Industry Bias

I think pornography might make a difference (i.e., the answer to the question I posed might be “Yes”), but not necessarily because judges are biased—even unconsciously—against the pornography industry. The funny thing about judicial bias is that it pretty much has to be unconscious to have an effect. Judges are well aware that they are supposed to be unbiased—it’s baked right into the job description—and with some unfortunate exceptions, they do a good job of ignoring their personal biases. Judges are used to making unpopular rulings, and most people can distinguish between a judicial opinion and…

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Swarming the Defense: BitTorrent, Copyright and an Obscure Procedural Doctrine

Unappreciated Joinder Is Playing a Decisive Role in BitTorrent Cases

Last time, I said that the real action in these BitTorrent cases (including the one we’re discussing, In Re BitTorrent Adult Film) is “joinder,” where multiple parties are placed on the same side of the “V” in a court case—in the BitTorrent cases, sometimes hundreds, thousands or even tens of thousands of parties are placed on the defendants’ side of the “V.” A plaintiff can try to “join” as many defendants as it wants, but courts have the power to split the defendants off into their own cases, a process known as “severance.”

It’s a relatively dull topic*, but it’s proving pivotal in the BitTorrent cases. Cases in which the defendants are severed are almost never re-filed.** At first, this might seem strange. The cases are not dismissed permanently. The plaintiffs just need to re-file against the defendants as separate, individual cases. And pay the $350 filing fee for each case.

* Which is fine with me because I’m a HUGE civil procedure nerd.

** Based on my own observations and anecdotal evidence. I’m not sure if anyone has been tracking all of these cases.

All for 10,000, 10,000 for…

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