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Successful FRCP 12(b) motion to dismiss in Torrent illegal movie download case

Posted by Steve Vondran | Dec 03, 2016 | 0 Comments

Defense Strategies in Torrent Download Cases – The Motion to Dismiss


Here is one federal court case from Oregon where a Defendant claimed he did not download a Cobbler Nevada movie, and filed a motion to dismiss the case which alleged copyright infringement and contributory copyright infringement.  You can find the case on Federal Court Pacer Online by searching Case 3:15-cv-00866-SB Document 27.

Sample allegations from the Defendants Motion to Dismiss

Here are a sample of the some of the language in the case:

“Defendant Thomas GONZALES moves the Court for an order dismissing Plaintiff's second claim for relief (indirect copyright infringement) on the ground that there is no authority under existing law or under a good-faith proposal for an extension of law that would support the imposition of liability for the conduct alleged.”

“The Copyright Act does not expressly render anyone liable for infringement committed by another.” Sony v. Universal City, 464 U.S. 417, 434 (1983). However, courts have developed several common-law doctrines of secondary liability, which are called contributory infringement, vicarious infringement, and inducement of infringement.  This Memorandum will set forth the common-law rules for the three theories of secondary liability and show that Plaintiff's allegations fail to satisfy any of them.”

Plaintiff's factual allegations about Defendant are confined to just four paragraphs and if they are taken to be true (as the Court must while reviewing a Motion to Dismiss under R. 12(b)(6)), they establish:

Plaintiff filed originally against an unidentified person (a “Doe”) known only by a numeric computer address, and now believes that Defendant GONZALES is that person;

The computer address (not any particular person, and certainly not Defendant) has been observed distributing Plaintiff's motion picture “multiple times;”

The computer address (not any particular person) “has been observed as associated with the peer-to-peer exchange of a large number of copyrighted titles;” and

Defendant has been sent “over 400 notices of infringing activity.”

The Motion discussed “Contributory” Copyright Infringement

“The classic statement of the doctrine [of contributory infringement] is in Gershwin, 443 F.2d 1159, 1162: ‘[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a «contributory» infringer.'” Fonovisa v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir., 1996). As might be expected, virtually every word of that definition has been argued over and construed in one case or another, but Plaintiff does not even allege facts that – if true – would give Defendant knowledge of others' infringing activity – as noted above, the only allegation is that notices of infringing activity “were sent,” not that Defendant received, read or understood them. The “knowledge” element is not satisfied constructively: “was sent” does not suffice. (“[Plaintiff's] decision to forgo the DMCA notice protocol ‘stripped it of the most powerful evidence of a service provider's knowledge—actual notice of infringement from the copyright holder.'” UMG Recordings v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1020 (9th Cir. 2013)). And even if “was sent” was enough, notices from others, about copyrighted properties of those others, cannot be relied upon by a plaintiff who did not bother to try to protect his own property.”

“Plaintiff's allegations are also deficient in that no “other infringers” are identified, and no acts by Defendant to “induce, cause[] or materially contribute[] to” those others' infringing conduct are alleged. There is no shortage of examples of such material contributions: promoting (i.e., creating an audience for) directly-infringing artists, Gershwin Publishing Corp. v. Columbia Artists Management, 443 F.2d 1159 (2nd Cir. 1971); promoting a swap meet and controlling customer and vendor access, Fonovisa Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996); providing an Internet site and support facilities to help direct infringers find and download copyrighted music, A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). Yet here, Plaintiff does not allege any act by Defendant, let alone one that could plausibly be described as Defendant's “material contribution” to the infringing activity of another.”

“Plaintiff's factual allegations, taken as true, do not give rise to liability for contributory infringement. The FAC does not adequately allege secondary liability for infringement under a “contributory infringement” theory, and the claim is properly under Defendant's Rule 12(b)(6) MOTION TO DISMISS subject to dismissal.”

After discussing all possible theories of copyright infringement, the Motion to Dismiss made requested dismissal:

“Plaintiff's First Amended Complaint is utterly devoid of factual allegations bearing on many essential elements of an indirect copyright-infringement claim, under any of the theories by which such liability could be imposed. Furthermore, the few factual allegations that are present are inadequate to raise a possibility of success in establishing the elements for which they are presumably offered. Yet Plaintiff offers only these sparse allegations in support of the legal conclusion that Defendant “facilitated and promoted the use of the Internet for the infringing of plaintiff's exclusive rights.  The allegations cannot possibly – let alone plausibly – carry the weight of the conclusions. And while it is true that granting a motion to dismiss at this stage ordinarily deprives a plaintiff of the opportunity to conduct discovery to substantiate his suspicions, in this case, Plaintiff has already been granted authority to conduct such discovery, and it still cannot state a claim against Defendant. For the foregoing reasons, Defendant respectfully requests that Plaintiff's second cause of action be dismissed.”

The Court ultimately agreed and granted the motion to dismiss and made a recommendation that Defendant receive its Attorney fees for defending the motion after Plaintiff amended the complaint, and later dismissed it.

Defendants Motion for Costs and Attorney Fees as Prevailing Party

 Click here to read about the once the case was dismissed by Plaintiff.

Torrent Defense Resources [VIDEOS]

Here are a few videos you should watch if you are facing a ISP subpoena or notice of copyright infringement from a movie company and their copyright lawyers.  First off you should review our .

  1.  VIDEO:  Potential damages in a copyright infringement case
  2. VIDEO:  Malibu Media Lawsuits
  3. VIDEO:  Overview of Bittorent lawsuit process
  4. VIDEO:  Potential defenses in a copyright infringement case

Contact a Bittorent protocal illegal download defense lawyer

If you need help defending against allegations of unlawful copyright infringement over the internet, call us to discuss your case with an infringement lawyer.  We have helped many clients in cases against London Has Fallen, Malibu Media, Flava Works, and other copyright holders alleging willful infringement.  Call (877) 276-5084.  In many cases we can offer a flat rate fee to try to settle your case anonymously.  If litigation is required, a different fee structure is normally required.

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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