IP Address is Not Enough to Identify Pirate, US Court of Appeals Rules

The owner of an adult foster care home who operated an open WiFi network has booked a big win against a copyright troll. Thomas Gonzales was accused of downloading the Adam Sandler movie The Cobbler but won $17k last year after being wrongfully targeted. The case went to appeal and in a ruling handed down yesterday by the Ninth Circuit Court of Appeals, Gonzales emerged victorious again.

Copyright trolling is a messy business with an extremely poor reputation but that hasn’t stopped dozens of companies trying to profit from it.

Plenty of cases go the trolls’ way, settled privately for large sums before ever reaching a courtroom. But, every now and again, things go bad for them in an extremely big way.

In Oregan during 2016, a case filed by the makers of the Adam Sandler movie The Cobbler against an alleged pirate received a big set back. A judge dismissed a direct infringement complaint against Thomas Gonzales when it became clear that the defendant probably wasn’t the infringer.

Gonzales’ case is an interesting one. Rather being targeted in his home as many alleged infringers are, his alleged wrongdoing took place in the adult foster care home he runs. His Comcast account, which was connected to an open WiFi network, had allegedly been used to download and share the movie. Due to the network’s open nature, anyone could’ve carried out the infringement.

Due to concerns over privacy, Gonzales refused to hand over the names of other individuals with access to the WiFi network unless Cobbler obtained a court order. The district court subsequently granted leave to depose Gonzales but the process did not reveal the identity of the infringer.

This important set of circumstances didn’t deter the trolls, who pushed ahead with the case regardless. The decision was a poor one. Early 2017, District Judge Michael Simon ruled that the plaintiffs could not claim direct or indirect infringement and should pay Gonzales’ legal fees of $17,222.

“The Court will issue a Judgment dismissing with prejudice Plaintiff’s indirect infringement claim and without prejudice Plaintiff’s direct infringement claim against Mr. Gonzales,” the Judge wrote.

By shifting the costs onto the rightsholders, the Court hoped to send the message that bringing cases without solid evidence can prove costly. However, that message must’ve got lost in translation as the trolls doubled down and took the case to appeal. That decision also proved to be a poor one.

In a ruling handed down yesterday by the Ninth Circuit Court of Appeals, Judge Margaret McKeown makes it crystal clear that Cobbler Nevada LLC, the owner of the copyright in question, has no case against Gonzales.

“In this copyright action, we consider whether a bare allegation that a defendant is the registered subscriber of an Internet Protocol (‘IP’) address associated with infringing activity is sufficient to state a claim for direct or contributory infringement,” the Judge writes.

“We conclude that it is not.”

Cobbler Nevada claimed that Gonzales had directly infringed their rights or, in the alternative, contributed to another person’s infringement by failing to secure his open WiFi. The district court, which previously heard the case, dismissed these claims. The Ninth Circuit agreed that was the correct decision.

“The direct infringement claim fails because Gonzales’s status as the registered subscriber of an infringing IP address, standing alone, does not create a reasonable inference that he is also the infringer,” the Judge notes.

“Because multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle. A plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer.”

Cobbler’s backup plan, that failing a direct infringement claim it could claim contributory infringement, also crashed and burned. Since the rightsholder couldn’t show that Gonzales had done anything to encourage the downloading and sharing of the movie, the claim was dismissed.

“[W]ithout allegations of intentional encouragement or inducement of infringement, an individual’s failure to take affirmative steps to police his internet connection is insufficient to state a claim,” the decision reads.

In an additional analysis, Judge McKeown notes that while finding an infringing IP address is usually pretty straightforward, it’s not always easy for copyright holders to find out who was behind the address at the relevant times.

“The reasons are obvious — simply establishing an account does not mean the subscriber is even accessing the internet, and multiple devices can access the internet under the same IP address,” the Judge writes.

“Identifying an infringer becomes even more difficult in instances like this one, where numerous people live in and visit a facility that uses the same internet service. While we recognize this obstacle to naming the correct defendant, this complication does not change the plaintiff’s burden to plead factual allegations that create a reasonable inference that the defendant is the infringer.”

It will be interesting to see how this ruling affects other similar cases moving forward. Many homes and businesses have WiFi that is accessible to several residents, workers, or visitors. Identifying who was at the helm at the time of an alleged infringement will be challenging at best, impossible at worst.

The Ninth Circuit ruling is available here (pdf)