18 September, 2018

I Spy with My Little IP - An IP Address Not Enough to Identify Copyright Infringer, Says US Court of Appeals

The identification of infringers of intellectual property is incredibly important in order to mount a proper and, above all, fair prosecution of those who are infringing on your rights. This is, however, exceedingly difficult in the Internet age, where the person downloading a movie, for example, is difficult to tell from a household of four, let alone the swathes of nameless ‘individuals’ occupying Internet services. The IP address of a given for each computer, identifying them separately in a network when connected to it, has long been one way of distinguishing the infringers from other users. The protocol still has its issues in certainty, and therefore, is it a reliable piece of evidence when establishing liability? The US Court of Appeals took on this question not long ago.

The case of Cobbler Nevada LLC v Thomas Gonzales concerned the movie ‘The Cobbler’, for which Cobbler Nevada owned the copyrights to. Due to its popularity, the movie was swiftly shared on many websites online using the BitTorrent protocol. Cobbler Nevada identified one IP address in Nevada which downloaded and distributed the movie without authorization, later further identified as being Mr Gonzales’ internet service. The connection, however, was a freely accessible one, which was used by both residents and visitors at an adult care home. Legal counsel for Cobbler Nevada determined that they were unable to confirm that Mr Gonzales was the infringer in question. Nevertheless the company filed a complaint against him, alleging they copied and distributed the work online, basing this on the fact that he was the subscriber of the IP address used to do so.

The crux of the matter is whether the IP address used in the matter is enough to prove that Mr Gonzales had indeed been the infringing party. The Court correctly highlighted that “…a particular IP address (i.e., an account holder)… does not mean that the internet subscriber is also the infringer… 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”. This fact is further exacerbated by the fact that many people were able to freely access the connection at the location.

Cobbler Nevada promptly moved to more traditional
identification methods
The US court have firmly established that, for a claim to be established, you “…must show… the defendant himself violated one or more of the plaintiff’s exclusive rights”. The Court quickly determined that Cobbler Nevada had not done so in this case. As discussed above, their internal investigations yielded no confirmed result, and clearly led to unsubstantiated allegations of infringement. The claim was later amended to simply refer to the IP address and no particular defendant, which still left the claim with no clearly identified infringer.

The second claim revolved around contributory infringement, i.e. that Mr Gonzales had encouraged or facilitated the infringing activities using his network connection. To put into more concrete terms: "...one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another". Cobbler Nevada claimed that Mr Gonzales had failed to adequately police his Internet connection, especially in the light of several notices sent to him regarding the matter. The Court, yet again, dismissed this allegation out of hand, as the perfunctory allegation does not sufficiently link him to the alleged infringement. The courts have previously denied contributory liability merely through the possibility of the use of a technology to infringe in Sony Corporation v Universal City Studios (more on which here), which similarly would apply to an open Internet network.

Contributory infringement requires two strands of liability: (i) actively encouraging (or inducing) infringement through specific acts; or (ii) distributing a product distributees use to infringe copyrights, if the product is not capable of ‘substantial’ or ‘commercially significant’ non-infringing uses.

Cobbler Nevada lacked any allegations that Mr Gonzales had infringed along the first strand. They had done no acts to encourage anyone to infringe any rights, or materially contributed to the same. Similarly his Internet service was not capable of distributing a product or service that is not capable of substantial or significant non-infringing uses. The Court noted that Internet service owners should not have an affirmative duty to actively monitor their Internet connection.

The Court ultimately dismissed Cobbler Nevada's claim.

The case is an important milestone in establishing firmer rules of identification on the Internet. Should we simply use the closes possible approximator of liability we could expose swathes of people to direct or indirect liability, which is clearly not the intention of the legislation. While the lack of certainty in using IP addresses to identify potential infringers has been established before, this is an important reminder of the fact. Even so, infringers could face liability when identified via an IP address, so the decision is by no means absolution for the wicked.

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