04 March 2013

Prenda lawyer facing sanctions in BitTorrent copyright infringement case

A lawyer with the notorious Prenda Law (wefightpiracy.com, how cute!) firm is facing sanctions in federal court in a case involving allegations of copyright infringement via BitTorrent. Brett Gibbs must answer to the court by March 11 why he should not be sanctioned for making unsupported allegations on behalf of Ingenuity 13 LLC, an adult film company.

In his complaint on behalf of Ingenuity (see below), Gibbs alleged that a John Doe (later identified as Benjamin Wagar) downloaded a copyrighted video via BitTorrent. In the original complaint, Gibbs identified the John Doe only by an IP address, the BitTorrent client, and the time of the download.

David McAuley, writing for Bloomberg's BNA Law Reports (14 CTLR 136 (Issue No. 05, 03/01/13)), described how Gibbs identified Wagar:
Worse, it continued, was the plaintiff's methodology to identify the defendant. In a status report to the court, counsel indicated that he identified one defendant, Benjamin Wagar, by virtue of the household where the implicated IP address was located, along with eliminating females or subscribers who were 75 years old. The court rejected this approach out of hand.
The Court interprets this to mean: if the subscriber is 75 years old or female, then Plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant. Plaintiff's “factual analysis” cannot be characterized as anything more than a hunch.
There was nothing to show that Wagar was the infringer, the court remarked. While it was plausible that he was the infringer, the plaintiff's deduction fell short of the reasonableness standard that Rule 11 required.
There were reasonable steps the plaintiff could have taken to factually bolster its claim, the court noted, from an old-fashioned stakeout to an assessment nearby the house to determine if the defendant had Wi-Fi, and if it was password-protected. These steps might not be perfect, but they beat, “blindly picking a male resident from a subscriber's home,” the court said.
There are a few interesting takeaways from this case. First, plaintiffs alleging as much must do more investigation than just associating an IP address with whomever might be living at the residence in question. An IP address does not equal a person. Second, the judge recognized that someone could have leeched Wagar's wireless internet. Gibbs didn't do any of this. Third, Prenda Law is getting smacked down again. They have a record as copyright trollers and this adds to their notorious reputation.

The court's order to show cause with respect to the possible sanctions for Rule 11 and Local Rule 83-3 violations is shown in full below.

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