IP address not enough to sue for piracy, says Ninth Circuit

Presenting an IP address linked to alleged copyright infringement is not enough to sue the registered subscriber, according to a recent ruling from the US Court of Appeals for the Ninth Circuit.

In an opinion handed down on Monday, August 27, the Ninth Circuit gave a win to Thomas Gonzales, who had been accused of piracy by film distribution company Cobbler Nevada.

Back in 2015, Cobbler Nevada filed a complaint against Gonzales, who was named as a subscriber to an internet protocol address which had allegedly illegally distributed the film “The Cobbler” via a public BitTorrent network.

“The Cobbler” starred comedian Adam Sandler and actors Dustin Hoffman and Steve Buscemi.

Gonzales’s alleged infringement took place at an adult foster care home he ran.

However, according to the Ninth Circuit, Cobbler Nevada’s counsel learned that the internet service was accessible to residents and visitors at the care home, and the counsel concluded that “it does not appear that [Gonzales] is a regular occupant of the residence or the likely infringer”. 

Due to confidentiality concerns, Gonzales refused to share the names of the individuals living and working in the home without a court order being issued. The district court granted leave to depose Gonzales, but this didn’t reveal the identity of the actual infringer.

In June 2016, Judge Anna Brown granted Gonzales’s motion to dismiss the claim and also dismissed Cobbler Nevada’s claims for direct infringement.

Last year, Judge Michael Simon of the US District Court for the District of Oregon handed Gonzales more than $17,000 in attorneys’ fees.

Cobbler Nevada appealed against the decision, but earlier this week, the Ninth Circuit sided with Gonzales.

The Ninth Circuit held that Cobbler Nevada’s “bare allegation” that Gonzales was the registered subscriber of an IP address associated with the infringing activity was insufficient to state a claim for direct or contributory infringement.

Judge Margaret McKeown, on behalf of the court, concluded that 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”.

McKeown noted: “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.”

She added that Cobbler Nevada couldn’t succeed on a contributory infringement theory because an individual’s failure to take “affirmative steps to police his internet connection” is insufficient.

David Madden, principal attorney at Mersenne Law and Gonzales’s representative, said he was pleased with the court’s ruling.

"Cases like this have been brought since 2010 or so, and companies in the same position as Cobbler Nevada have been presenting the same flawed allegations to courts across the US for the entire time," he said.

However, over the past couple of years, people have begun to defend themselves against these suits, Madden added, which has allowed for the current case to receive appellate review.