Ninth Circuit Decision Requires Greater Pre-Suit Investigation for Copyright Piracy Cases

A recent Ninth Circuit decision, Cobbler Nevada, LLC v. Gonzales (2018), requires greater due diligence before a copyright enforcement suit can be brought.

Downloading of movies and other copyrighted content is a major problem for many copyright owners, and they have fought back by tracing the illegal downloading to an IP address. But the Ninth Circuit has held that merely identifying the IP address and its associated subscriber is insufficient to bring suit.

Cobbler Nevada owns the rights to the movie The Cobbler. Like many popular movies, it has been subject to illegal downloading through BitTorrent – the company claims that there were over 10,000 cases of infringement in Oregon alone since the movie was released.

As is common in these kinds of cases, the company traced one download to an IP address in Portland, brought suit against “John Doe,” the subscriber of the address, and then subpoenaed the service provider, Comcast, to identify the subscriber, one Thomas Gonzales. It turned out the address was located at an adult foster care home he operated.

Cobbler brought suit against Gonzales for direct and contributory copyright infringement. The district court dismissed the claims, and the Ninth Circuit affirmed. Under Supreme Court precedent, a federal court plaintiff must plead facts that make it at least “plausible” that the allegations are true. Cobbler’s complaint failed this test.

As to direct infringement, the mere fact that Gonzales was the registered address owner did not mean he was the infringer. “[S]imply 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.” Despite being allowed to take discovery, Cobbler was unable to offer any further facts to justify its charge of infringement.

As to contributory infringement, all Cobbler was able to allege is that Gonzales subscribed to an account that he then allowed others to use to download the movie. But such passive behavior does not constitute contributory infringement. Contributory infringement requires the party to “actively encourage” acts of infringement, not merely failing to police the internet connection. “[F]ailure to take affirmative steps to prevent infringement alone cannot trigger liability” for contributory infringement.

One open question for future cases is, how precise does a copyright owner’s investigation have to be? In Cobbler, the IP address was at an adult care facility, where there were potentially dozens of possible infringers. But suppose the IP address had been traced to a private home? There the possible infringers are likely fewer. On the other hand, still there may be a number of possibilities of who is the infringer – there may be several family members who use the same IP address, and, if the connection is not secure, neighbors may also use it. Would tracing the download to an IP address in such a situation suffice? We expect that to be litigated in future cases.

In any case, the Cobbler decision certainly makes it more difficult for copyright owners to enforce their rights. Greater due diligence – and perhaps advances in technology – will be needed for more precise tracing of infringing downloads before a copyright owner can bring suit.