The owner of a shared internet connection isn’t obliged to ensure others aren’t committing copyright infringement on it, the U.S. Court of Appeals for the Ninth Circuit ruled Monday.
Cobbler Nevada obtained the IP address of the infringing computer and traced it to Thomas Gonzales, the operator of the home. The company then charged Gonzales with infringement, either directly for downloading the copies personally or contributorily for failing to prevent either workers or residents from downloading, despite being sent more than 400 notices of infringing activity. Cobbler Nevada never determined who downloaded the movie.
Ninth Circuit Judge M. Margaret McKeown ruled Monday that wasn’t enough to plead a plausible claim of copyright infringement under the familiar Twombly/Iqbal standards.
“The registered subscriber of an infringing IP address, standing alone, does not create a reasonable inference that he is also the infringer,” McKeown wrote in Cobbler Nevada v. Gonzales. As for contributory infringement, without allegations of intentional encouragement or inducement of infringement, “an individual’s failure to take affirmative steps to police his internet connection is insufficient to state a claim.”
McKeown pointed frequently to the Supreme Court’s peer-to-peer sharing decision in MGM v. Grokster, which pins liability on individuals who “encourage or assist” the infringement.
Cobbler Nevada didn’t identify such conduct, McKeown wrote. Instead it sought to impose an active duty to monitor one’s internet service for infringement.
“Imposing such a duty would put at risk any purchaser of internet service who shares access with a family member or roommate, or who is not technologically savvy enough to secure the connection to block access by a frugal neighbor,” McKeown wrote.
She affirmed U.S. District Judge Michael Simon’s decision to award $17,222 in attorney fees to Gonzales. She agreed with Simon that the fee award would discourage Cobbler Nevada from an “overaggressive pursuit of alleged infringers without a reasonable factual basis” while encouraging defendants with valid defenses to defend their rights.
Judges Richard Paez and Robert Lasnik, the latter visiting from Oregon district court, concurred.
David Madden of Mersenne Law in Tigard, Oregon, had the winning argument for Gonzales. Cobbler Nevada’s appellate counsel, John Mansfield of Portland’s Harris Bricken, argued that the fees should not have been awarded because his client voluntarily dismissed its claims.
Lasnik, the visiting judge, told Madden at the May argument that he’s aware of a coffee shop that uses “No Illegal Downloads” as its password. “That gives you a defense right there,” he said.