IP address alone is insufficient for copyright infringement
On August 27, 2018, the Ninth Circuit upheld a dismissal of copyright infringement lawsuit alleging that a defendant was the registered subscriber of an IP address associated with infringing activity. See Cobbler Nevada, LLC v. Gonzales, (9th Cir. Aug. 27, 2018), Case No. 17-35041 (see link).
In this case, the plaintiff identified an IP address that downloaded and distributed a movie via BitTorrent networks. Plaintiff sued the unknown holder of the IP address, and learned that defendant was the subscriber associated with the IP address. After contacting defendant, plaintiff learned the IP address was accessible to residents and visitors of an adult care home. Nonetheless, plaintiff sued defendant for direct and contributory copyright infringement. In its complaint, the only fact connecting defendant to the unlawful activity was that defendant was the subscriber of the IP address. Given that there were no facts alleging that defendant engaged in the unlawful activity or "actively encouraged" the unlawful activity, the district court dismissed the complaint and awarded attorneys fees to defendant.
The Ninth Circuit affirmed the dismissal of the direct infringement claim. The Court found that a subscriber of an IP address is not necessarily the infringer. "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." While it may be difficult, it is "the plaintiff's burden to plead factual allegations that create a reasonable inference that the defendant is the infringer."
The Ninth Circuit affirmed the dismissal of the contributory infringement claim. The Court found that the complaint failed to allege that the defendant "actively encouraged or induced infringement", and that internet service has substantial legitimate, non-infringing uses. Finally, the Court did not accept plaintiff's position that defendant should have taken affirmative steps to prevent infringement.
The Ninth Circuit affirmed the attorneys fee award to defendant because defendant was the "prevailing party" because the contributory infringement claim was dismissed with prejudice.
Given this ruling, any copyright holder attempting to enforce their copyrights in the Ninth Circuit needs: (1) to consider carefully if they have sufficient basis to identify a particular person as an infringer, and (2) to ensure that such facts are alleged in their complaints. Failing to do so could lead a court to dismiss a claim with prejudice and award attorneys fees to the defendant.