Introduction BitTorrent Litigation Updates 2019 - Evidence of Infringement.
When you get a subpoena notice from your ISP informing you that a media company like Malibu Media, LLC or Strike 3 Holdings, LLC are trying to get at your name and address from your ISP, a few questions should come to mind. Things I like to know. Should you litigate? If you did not do the downloading of their movies, should you LITIGATE the case? And if so, would you be able to recover your attorney fees? Defendants can recover their attorney fees (or at least seek to) if they can show the Plaintiff filed in bad faith. There are ways to try to setup the case for this. Is Plaintiff counsel possibly over-booked? Are law firms such as Bandlow Law Firm (a main filer of file sharing lawsuits dealing with porn videos) capable of maintaining a litigation caseload with their new firm (remember he left Fox Rothschild, a huge law firm with hundreds of lawyers and is now a much smaller firm). Can they handle all the cases they are filing? There are many cases they are filing and at some point it would seem that the caseload may grow to a very large size if the cases do not quickly settle. If the innocent people would challenge the lawsuits this could cause a major problem to firms in this area. Try to get a gauge by looking at Pacer, see what their caseload might be looking like. Is the "Hash File" real evidence of infringement or just trash? Will they explain what content is found in the “hash file” (part of the infringement report filed with the Court)? These pornography companies claim the hash-file shows the evidence of infringement but that is just a random number pulled from the content. How is it that they take the hash file and match that up with a copyrighted movie on each and every file alleged to be infringing? That would be a tremendous amount of work. Don't be afraid to ask the question. Not sure you will get an answer. How can they prove files were downloadable, playable, viewable? Not all files requested through BitTorrent are actually sent and received in a fully playable or viewable format. Did the requesting computer receive a full movie? A picture of a movie? A corrupt file? Nothing? These are questions to ask and DEMAND PROOF ON. Will the Jury have a Fury? What would a jury do with a case like this (side with an adult porn company and a “hash file” or a “PCAP file” (which I have not yet seen to date). The PCAP file would show if the files (packets) in internet traffic were actually downloaded (and not corrupted file for example), but this is not attached to the complaint for some reason and not provided to Defense counsel. Why? What‘s to hide? Their (Strike Three) investigator overseas (IPP UG) are they really confirming the existence of these files, each and every one? U.S. Copyright Office - Are the Copyrights Registered? Are all the files alleged to have been downloaded and shared actually copyright registered with the United States Copyright Office? If not, those alleged infringements should not be in the complaint (court has no subject matter jurisdiction to hear the case). You have to look closely at all the alleged infringements. Make them show you they have copyrights for everything. Did they copyright AFTER they noticed alleged infringement? Cobble Cobble Nowadays, Strike 3 (running into being forced to get over the "Cobbler hurdle" as I call it - see link below) must allege “something more” than just an IP address to overcome a motion to dismiss. What do they have? Now, what I see them doing is getting the John Doe Defendant’s name from the ISP then (in what appears in my opinion to be nothing more than junk science) they will search out the Defendant on social media (most likely facebook) to see what you “interests” are or “likes” are and they are matching that up with a report (again, which appears to derive from their investigator IPP) and a list of “other movies” the DOE defendant allegedly downloaded (sometimes going back years) are compared with the social media “interests” and this is supposed to show a “correlation” that Defendant is the downloaded. Is this inadmissible character evidence (trying to show Defendant is a “serial downloaded” infringing on a massive scale) under FRE 404 or admissible "habit evidence"? If character evidence, how would this be allowed to be used as the “something more” demanded by the Cobbler case (9th Circuit)? "Additional Evidence" and Movie Preference Snooping - is it legal? Moreover, if IPP (or other investigator) is snooping on your movie and TV show interests (nothing to do with their movies and protecting their IP), and then sharing this information with the Bandlow Law Firm or other torrent Plaintiff counsel, does this violate the Federal Video Privacy Protection Act? I am going to do a separate blog that analyzes this legal theory. For now, it seems that information about what you watch and share online is being shared with other. Remember, the HULU case which said that VPPA applied to online videos as well (whether paid for or not). So, this requires a separate blog but for now, is something to think about. They will say your torrent activity is PUBLIC (no reasonable expectation of privacy) so we will be taking a look at this. Oh heaven, what about Rule 11? This all begs the question, can their complaint, as written (mainly boilerplate complaints virtually alleging the same allegations (with some slight noteable variations), survive a MTD and a Rule 11 challenge? Rule 11 requires good faith before a lawyer brings a lawsuit. If they know Cobbler is a hurdle, and if trying to get around this with character evidence (vs. habit evidence - see above), does such a complaint survive a Rule 11 challenge? More things to keep in mind. I am not arguing one way or the other, just things to keep an eye on in your case. I didn't download their movies At the end of the day, can they survive a motion for summary judgment? Are there other reasons for the downloads, if they really exist? Some examples may include:
A. Group home *(many computers and laptops connecting - who dunnit)
B. Unsecured WiFi (could be neighbor using your bandwidth for downloads)
C. Many visitors to the household? (kids and their guests - whodunnit)? Fraternities
D. Passive downloads no one was aware of (have you ever seen your computer taken over by some type of software or had your browser hijacked forcing you to reboot?
E. VRBO with renters / tenants (Vacation Rental by Owner)
The list goes on. Conclusion These are just some of the issues and questions that I think need to be asked in every case and your options of litigating (on a monthly flat fee basis with costs) versus settling should be explored. Cobbler has changed the landscape, and only time will tell if this “additional evidence” Strike 3 is coming up with (if they already have the evidence why do they need additional evidence, especially what appears to be inadmissible character evidence) will be accepted by the Court, or whether a complaint will be subject to a motion to dismiss, and if not dismissed, an answer and a POTENTIAL countersuit for unfair business practices (sharing movie interests not related to their own IP), violation of the Video Privacy Protection Act, and Declaratory Judgment of non-infringement, so that a Doe Defendant wrongfully accused can have a CHANCE to recover their attorney fees in the cases where they cannot prove the files exist on the end users computer.