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Challenging the period of infringement in torrent illegal swarm download cases

Posted by Steve Vondran | Nov 07, 2016 | 0 Comments

Defenses to Bittorrent adult movie infringement – Challenging ISP retention policies, laches, consent, estoppel and statute of limitations.

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When you get sued by adult movie companies like Malibu Media (one of the most prolific copyright infringement lawsuit filers in federal court history), attached to the complaint you might find an Exhibit that shows the history of illegal downloads of various movie titles that Plaintiff claims is infringing.  If true in your case, you may also note that the download history may go back a few years.  For example, the log sheet may show the Defendant is accused of downloading movies in 2012, 2013, 2014, and 2016.  You may wonder “who keeps tracks of my last four years of downloaded movies?  Is that my ISP Cox, Verizon, Comcast, AT&T, Charter or Time Warner?  What are their logging and tracking policies? This blog discusses a few possible defenses to Torrent lawsuits under situations like this.  Click here for to go to our resource page if you are wondering .

Sample evidence log

Attached is sample evidence log from one federal court lawsuit.  You can see how far back the alleged illegal movie downloads go.  But is your ISP really tracking your downloads and storing them in a log year after year after year?  I suppose you would have to know what their policy is.  Also, was this disclosed to the internet subscriber – that your movie downloads would be tracked and stored for X number of years?  This is an interesting question, because if the internet service provider only keeps records, say, for 180 days, then how could a Plaintiff possibly rack up copyright infringement damages for the past several years?  Moreover, WHY DID THEY WAIT SO LONG TO FILE A LAWSUIT SUIT IF THEY HAD EVIDENCE OF ILLEGAL DOWNLOADS IN 2012 FOR EXAMPLE?

This points out why it is important to see what evidence your ISP turns over to the movie, music, or software company following being served with the subpoena.  Ask to see a copy of what was turned over.  Did your ISP violate their own terms of service?  Did they invade your privacy?  These are some things to think about.  I would call and ask the ISP subpoena response team how long they keep file logs for.  This might help cut down on frivolous damages that cannot ever be possibly proven in a court of law.  Examine everything.  Find out how long they keep IP address logs.  Remember, domain names are “dynamic” meaning they are always changing.   I spoke with a Comcast rep who told me they change very 7 days.  So somehow the ISP has to be trying to keep up with all this.  If not, the proof of illegal downloads may fall on its face.

How long does an ISP keep I.P. and download logs?

Time Warner is one ISP that is transparent about how long they keep certain records.  Here is what their website says:

IP Address Assignment Logs Up to 6 months (180 days) Call Records: Call Detail Records (“CDRs”) for billed calls (i.e., international; OS/DA; any interstate billed call), inbound calls and local/intrastate calls are maintained for 18 months. Preservation Requests 90 days. Preservation requests may only be requested by government agencies. Connection Logs We do not maintain information regarding connection logs or start/stop times for internet use. E-mail content E-mail content is generally not available as subscriber E-mail is stored on our server only until it is opened. We do not store deleted emails on our servers.

A Privacy Policy can tell you what your ISP is collecting and storing about your online behavior

Here is an example from the Time Warner privacy policy I found online under INFORMATION WE COLLECT:

Policy – It is our policy to collect only the personally identifiable information (PII) that we need to provide the services of this website with the quality you desire and deserve. Cox Customers – If you are a customer of Cox, this PII may include your name, address, age, telephone numbers, account number, social security number, user IDs, passwords, email addresses, and other information as provided to us online or as a customer of Cox. It is our policy to retain such information only as long as needed for our business purposes or as the law may require. We take reasonable steps to protect your account information from unauthorized access. Website Visitors – When you access our website, we automatically collect access log information about your visit, including information such as the Internet Protocol (IP) addresses assigned (numbers assigned to your computer while online), bandwidth used, system and connection performance, browsers used, dates and times of access, and Internet resource requests, including requests to access web pages. We do not store emails sent and received unless left in a Cox High Speed Internet account file.

This should give you a basic idea of what your ISP may collect, and how long they might keep it.

Statute of Limitations

So going back to our example above, if the lawsuit claims you were downloading movies several years ago, how did they get this information?  Remember, the lawsuit gets filed BEFORE the subpoena is sent to your ISP, so how did they get this information?  Usually they will claim its from their digital forensics investigation company.  But what does the forensic company do?  Do they hold onto to your movie download history for 3 or 4 years before the list of movies downloaded becomes enough to make a “juicy” copyright infringement case?  If they had the knowledge of video infringement in 2012, for example, why did they wait until 2016 to file the lawsuit?  This could raise issues with the copyright three-year statute of limitations.

Laches Defense

Holding on to old adult porno or other non-porn films (London Has Fallen for example) for great periods of time and NOT filing a lawsuit, could also raise affirmative defenses of “laches” or “consent” or “unclean hands” sitting around watching damages pile up without doing anything at all.  Laches basically means a Plaintiff “sat on its rights” for too long causing prejudice to the Defendant in not bringing the suit earlier.  But again, a Plaintiff generally has three years to file a copyright infringement lawsuit.  The Defense of Laches was shot down in one technology case involving software publisher Oracle:

“Oracle argues that summary judgment is appropriate on Rimini's laches defense because it did not delay in filing suit. The court agrees.   When a claim for copyright infringement is brought within the statute of limitations period, there is a strong presumption that there is no unreasonable delay. See Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 997 (9th Cir.2006) (holding that if a plaintiff “files suit within the applicable period of limitations for his claim, there is a strong presumption that laches does not bar the claims”); Novell, Inc. v. Unicom Sales, Inc., 2004 (N.D.Cal.2004) (applying the “strong presumption” that laches does not apply to a copyright claim filed within the applicable limitations period). Only in unusual circumstances will an action filed within the statutory period be considered a sufficiently unreasonable delay to permit a laches defense. See Danjaq LLC v. Sony Corp., 263 F.3d 942, 950–54 (9th Cir.2001) (finding that laches defense applied when re-released DVD material was identical in nature to an original infringing work and that although the statute of limitations would permit the lawsuit, the thirty-six year time lapse from the initial infringement was an unreasonable delay sufficient to support a laches defense).  See  Oracle USA, Inc. v. Rimini St., Inc., 6 F. Supp. 3d 1108, 1127 (D. Nev. 2014).”

Estoppel Defense

Another defense to consider is “estoppel.”  The argument would go “IF THE MOVIE COMPANY LETS ME DOWNLOAD MOVIES FOR THE PAST THREE OR FOUR YEARS WITHOUT SAYING SOMETHING THEY MUST BE GOOD WITH IT.”  This defense was also shot down in one federal court infringement case where the Court discussed:

StreamCast further raises the estoppel argument, based again upon the same two grounds discussed immediately above: (1) Plaintiffs' refusal to assist StreamCast, and (2) Plaintiffs' dealings with iMesh and others.  The elements of estoppel in copyright cases were established by the Ninth Circuit in Hampton v. Paramount Pictures Corp., 279 F.2d 100 (9th Cir.1960): Four elements must be present to establish the defense of estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury. StreamCast has failed to even identify this test, let alone demonstrate that it has evidence supporting each factor. While Plaintiffs are undisputedly aware of StreamCast's infringing conduct, the remaining elements find no support in the record. There is no evidence suggesting that Plaintiffs intended or acted in a manner that would allow StreamCast to believe that it could induce infringement. 23 The Court is also unaware of any “true facts” of which StreamCast was ignorant, or how StreamCast was injured through detrimental reliance on Plaintiffs' conduct. Thus, the estoppel argument is rejected.  See  Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1225 (C.D. Cal. 2007).

BONUS:  Click here for a more detailed discussion of potential copyright infringement defenses.

Implied License

If the Plaintiff allows all the downloads without doing something about it, an implied license exists.  This was also discussed in the Metro Goldwyn case cited above.  Again, the Court was not buying the argument:

StreamCast finally argues that it has been granted an implied license to distribute Plaintiffs' copyrighted materials. The general doctrine behind the theory of implied licenses was detailed recently in Field v. Google Inc., 412 F.Supp.2d 1106 (D.Nev.2006): A license is a defense to a claim of copyright infringement. A copyright owner may grant a nonexclusive license expressly or impliedly through conduct. An implied license can be found where the copyright holder engages in conduct from which [the] other [party] may properly infer that the owner consents to his use. Consent to use the copyrighted work need not be manifested verbally and may be inferred based on silence where the copyright holder knows of the use and encourages it. Similar to its failed waiver argument, StreamCast argues that Plaintiffs' alleged decision to allow other peer-to-peer networks to distribute its copyrights gives StreamCast the right to do so as well. This Court cannot agree that Plaintiffs' decision (assuming it is true) to allow other networks to distribute their copyrighted works permits StreamCast, along with the rest of the world, to do so as well. There is simply no evidentiary basis that would allow the Court to reach this conclusion. Finally, though not seemingly acknowledged by the district court in Field, the Ninth Circuit has explained that the implied license doctrine in copyright cases is to be very narrowly construed. In Napster, the Ninth Circuit stated that “[c]ourts have found implied licenses only in ‘narrow' circumstances where one party ‘created a work at [the other's] request and handed it over, intending that [the other] copy and distribute it.  239 F.3d at 1026 (quoting SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc., 211 F.3d 21, 25 (2d Cir.2000)). Obviously, Plaintiffs did not create their copyrighted works at StreamCast's request or for StreamCast's benefit. StreamCast therefore does not have an implied license to infringe, or to induce the infringement of, Plaintiffs' exclusive rights.”

Contact a Torrent defense lawyer

As you can see, prevailing on a defense to copyright infringement is never an easy task, but with experienced copyright counsel, you can investigate the claims and assert pressure by at least knowing the legal theories which may be viable and asserting them.  We have more ideas on our affirmative defense page.  To discuss your case with us, call (877) 276-5084.  We can help with claims of infringement dealing with internet content, articles, books, blogs, podcasts, movies, videos, songs, lyrics, comics, poetry, software, and other content that can be shared on internet websites and through p2p (peer-to-peer) file sharing websites.  We are also able to offer low flat rate fees for many non-litigation cases. 

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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