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Copyright Infringement in Cyberspace - Decoding Strict Liability (us)

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Etats-Unis >  Propriété intellectuelle >  Copyright 
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Auteur : Guity Deyhimy
Avocat au barreau du District de Columbia, D.C. Bar
Publié le 15/05/2011 dans Journal of the Bar Association of the District of Columbia (B.A.D.C.)


Envision an environment where plaintiff’s file seriatim in the Federal District Court for the District of Columbia, alleging copyright infringement for unauthorized download and/or unauthorized distribution of motion pictures on private computers.[1] Initially, plaintiff files against Doe defendants, whose Internet access has been identified as having been used for the unauthorized downloads, on a given day and at a given time, by what is referred to as a "dynamic internet protocol" (dynamic IP) address. Plaintiff then subpoenas the Internet Service Providers (IPSs), which had issued the dynamic IP address, demanding disclosure of the actual identification and physical address of each individual account holder whose dynamic IP address was thus identified. The ISP then notifies these individuals that it is required to disclose their actual identification and physical address to plaintiff's counsel unless a timely filed motion to quash is granted.

These individuals, the Doe defendants, reside throughout the United States; residents rarely in or near the District of Columbia. A great number of these Doe defendants would testify under oath that in fact they did not download and have no knowledge of the allegedly unlawful download using their respective dynamic IP addresses. The specter of substantial legal expenses in defense of a proceeding away from home, however, often militates towards an agreement to pay between $1,000 and $3,500, to purchase freedom from prosecution of the case against them.[2]

Assuming plaintiff files against 4,000 Doe defendants,[3] and half of the defendants settle close to inception for an average of $2,000, the case will have yielded plaintiff about $4,000,000 without the need to litigate it! Plaintiffs’ counsels have reportedly no intention of litigating the cases but instead intend to “farm out the litigation to other law firms.”[4]

This paper raises the question of whether such lawsuits constitute a proper use of the legal process, given the apparent lack of any evidence attributing to each Doe defendant the alleged infringing conduct element of plaintiffs’ claims, based on the use of their respective dynamic IP addresses.[5]

In this context, consider the relationship between a dynamic IP address and individual computers. Dynamic IP addresses are assigned by Internet Service Providers to their customers (account holders) on each occasion that a customer’s network connects to the ISP. The term is referred to as “dynamic” because the address is reassigned to a customer every time a new connection is made to the ISP.[6]

If the account holder had a "static" IP address, the access to the Internet would serve to identify that account holder. However, a dynamic IP address does not actually identify the computer hardware used at the given time on the given day, but only the connection of that hardware to the Internet. Whenever a connection is established[7], particularly by way of wireless networks[8] or war drivers,[9] data thieves or anyone else who has the appropriate wireless device can quite easily capture a person’s connection and use it,[10] among other things, for unlawful download of motion pictures, sometimes even through walls[11] or in adjacent parking lots.[12] Indeed, the Federal Trade Commission has issued a safety memorandum which describes measures one can take to reduce such security risks.[13]

It has been said that “[a]pplication of copyright law in cyberspace is elusive and perplexing. The World Wide Web has progressed far faster than the law and, as a result, courts are struggling to catch up.”[14] The types of cases discussed in this paper[15] (see, e.g., the cases cited in footnote 1) are premised on the use of individual account holders’ dynamic IP addresses to access the Internet, on a given day at a given time, to engage in the infringing conduct. Yet, such dynamic IP addresses may well have been, and in at least some cases most certainly were, captured by third parties who may have in fact engaged in the alleged infringing download and/or distribution. Thus, identification of the dynamic IP addresses does not inevitably lead to the conclusion that the account holders engaged in copyright infringing conduct. In fact, at least a good number of the targeted individuals sued as Does did not engage in the infringing conduct.[16]

Section 501 of the Copyright Act[17] entitles the legal or beneficial owner of a copyright to institute an action for infringement against anyone who violates his or her exclusive right.[18] Motion pictures are by definition specifically classified as such a right, as defined in Section 106 of the Copyright Act.[19] If the court finds the defendant to be individually liable for the infringement, instead of actual damages and profits, the copyright owner may elect to recover statutory damages, in an amount to be determined by the court, between $750 and $30,000.20[20] The Copyright Act is a strict liability statute, for a plaintiff makes a case of infringement where she shows she had (a) ownership of a valid, registered, copyright in the motion picture alleged to have been downloaded and that (b) by copying or reproduction defendant infringed upon that copyright.[21] Plaintiff must, however, be alleged and proven that defendant engaged “in some volitional conduct sufficient to show” that she actively engaged in the infringing conduct.[22]

The cases cited in footnote 1 lack a link between defendant Does and the “conduct” element of an action for copyright infringement, i.e., that the “acts” of the named defendant – and not someone else – constitute the infringement of the copyright. Because dynamic IP addresses are re-assigned systematically by ISPs, the identification of the dynamic IP address does not equate to identification of an account holder. As the connection of ISP customers or account holders can readily be captured and used by third parties, the identification of a dynamic IP address at a given time and on a given day simply cannot be deemed to have factual sufficiency for either a prima facie or proven allegation that the unlawful conduct was in fact engaged in, known to or intended by the account holder. The attribution of the dynamic IP address at a given time on a given day does not and cannot serve even as an inference that the account holder, to whose Internet access that address was attributed at the time, engaged in the unlawful infringing conduct. Given the current state of technology and the facility with which any knowledgeable passerby may use an Internet access, the question is raised whether the premise for these cases is flawed.

The argument might be made that, even if someone else in fact used a dynamic IP address of an account holder to engage in the infringing conduct, the individual whose dynamic IP address was used should still bear liability for the download, given the strict liability nature of the statute. Yet reliance on this secondary liability theory also appears flawed, as it would be difficult to establish the requisite volitional conduct on the part of Doe defendants, in the absence of knowledge or intent. For, in such cases, a plaintiff must actually show that “the defendant knew or had reason to know that infringing activity was taking place”[23] instead of simply relying on the technology’s potential for the infringing conduct.

“[T]he Copyright Act does not expressly render anyone liable for infringement committed by another (in contrast to the Patent Act).”,[24] An account holder cannot be held liable simply by the fact that her Internet access was identified in connection with the alleged infringing download. This being so, where a Doe defendant had neither intent nor knowledge of the passage of the infringing material, through her Internet access, no liability can attach to her merely as the account holder of such Internet access[25]. This holds true regardless of whether the unlawful conduct is alleged to have been copying or reproduction. With regard to file sharing, such lack of intent or knowledge is even more persuasive if the alleged conduct is said to be unauthorized distribution.[26] One cannot distribute what one does not possess.

An argument that the account holder should otherwise be held liable, as the holder of the Internet account used for the alleged infringement, based on the rationale that he or she was in control, would also appear vacuous, because the account holder did not have control over whether a third party would or would not, did or did not capture the account holder’s Internet access at the time of the alleged copyright infringement. A court “may not impute constructive knowledge to a defendant merely because a technology may be used to infringe a plaintiff’s copyrights if the system is capable of commercially significant non-infringing uses.”[27] Defendant must be proven to have “materially contributed to another’s infringement.”[28]

In conclusion, given the current state of the general public’s knowledge of and attention to systems security, it is indisputable that Internet access points are totally exposed to capture and illegal use by third parties using wireless devices, whenever dynamic IP addresses enable Internet access. This being the reality of the day, claims against an account holder for unlawful infringement of copyright must be premised on an account holder’s unlawful conduct, not merely on the information that the unlawful infringement took place at a given time on a given day using a given dynamic IP address for access to the Internet.



Notes et références

  1. See, e.g., G2 Productions v. Does 1-83, 1:10-cv-00041-CKK (D.D.C. filed Jan. 8, 2010); Worldwide Film Entertainment v. Does 1 – 749, 1:10-cv-00038-HHK (D.D.C. filed Jan. 8, 2010); DonkeyBall Movie v. Does 1-171, 1:10-cv-01520-EGS (D.D.C. filed Sept. 8, 2010); Cornered v. Does 1-2,177, 1:10-cv-01476-CKK (D.D.C. filed Aug. 30, 2010); Voltage Pictures v. Does 1-5,000, 1:10-cv-00873-RMU (D.D.C. filed May 24, 2010); Maverick Entertainment Group v. Does 1 – 1,000, 1:10-cv-00569-RJL (D.D.C. filed Apr. 8, 2010); West Bay One v. Does 1 – 1,653, 1:10-cv-00481-RMC (D.D.C. filed Mar. 23, 2010); Call of the Wild Movie v. Does 1-358, 1:10-cv-00455-RMU (D.D.C. filed Mar. 19, 2010); Achte/Neunte Boll Kino Beteiligungs GmbH & Co. KG v. Does 1 – 4,577, 1:10-cv-00453-RMC (D.D.C. filed Mar. 1, 2010).
  2. Greg Sandoval, Accused pirates to indie filmmakers: Sue us, (Oct. 21, 2010), If the account holder had a “static” IP address, the access to the Internet would serve to identify that account holder. However, a dynamic IP address does http://msn-cnet.com.com/2001-1_1-0.html?tag=hdr;brandnav (follow “News” hyperlink; then follow “Latest News” and find article number 179).
  3. See, e.g., Achte/Neunte Boll Kino Beteiligungs GmbH & Co. KG v. Does, supra note 1.
  4. Sandoval, supra note 2.
  5. The important issues relating to in personam and subject matter jurisdiction otherwise raised by these cases are beyond the scope of this paper.
  6. Jan L. Harrington, Ethernet Networking for the Small Office and Professional Home Office, 123 (2007); Douglas Jacobson, Introduction to Network Security, 33 (2009).
  7. Id at pp. 104, 114.
  8. Harrington describes the process as follows: “Wireless network adapters communicate with wireless access points (Aps) . . . To distinguish themselves, Aps have names known as Service Set Identifiers (SSIDs). When a remote device wants to connect to an AP, it supplies the SSID of the access point it wants to use . . . . By default, Aps broadcast their SSIDs for any wireless adapter in range to pick up. Aps broadcasting their SSIDs are therefore wide open to any device in range, a major security problem . . . unless one has taken higher-level security measures, which is beyond the technical know-how of the regular consumer.” Harrington, supra note 6, at 147.
  9. FOLDOC – Free Online Dictionary of Computing (foldoc.org) defines war driving as “(from wardialer in the ‘carrier scanner’ sense of that word) : To drive around with a laptop with a wireless card and an antenna, looking for accessible wireless networks.”
  10. Jacobson, supra note 6, at 115.
  11. Harrington, supra note 6, at 147.
  12. Jacobson, supra note 6, at 107; see also Lance Whitney, More people grabbing Wi-Fi from their neighbors (Feb.4, 2011, 9:45 AM PST), http://msn-cnet.com.com/2011-1.html?tag=hdr;brandnav (follow “News” hyperlink; then follow “Latest News” and find the article number 15.
  13. http://www.onguardonline.gov/topics/wirelesssecurity.aspx.
  14. CoStar Group Inc. v. LoopNet Inc., 164 F. Supp. 2d 688, 694 (D. Md. 2001), aff’d 373 F.3d 544 (4th Cir. 2004).
  15. See, e.g., G2 Productions v. Does, supra note 1.
  16. See, e.g., Sandoval, supra note 2.
  17. 17 U.S.C. § 501(a) (1976 as amended).
  18. 17 U.S.C. § 106 (1976 as amended): Exclusive rights in copyrighted works. “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords . . . .”
  19. 17 U.S.C. § 101 (1976 as amended) (“[M]otion pictures . . . defined as audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.”).
  20. 17 U.S.C. § 504(c)(1) (1976 as amended). Under this section, this amount may be increased to up to $150,000 if the infringement was willful. It may be decreased down to $200 if the infringer proves that “such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright.”
  21. Wildlife Express Corporation v. Carol Write Sales, 18 F.3d 502, 507 (7th Cir. 1994) (citing Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340, 361 (1991)); UMG Recordings v. Augusto, (No. 08-55998, filed Jan. 4, 2011) (9th Cir. 2011).
  22. See Arista Records v. Usenet.Com, 633 F. Supp. 2d 124, 148 (S.D.N.Y. 2009); Perfect 10 v. Cybernet Ventures, 213 F. Supp. 2d 1146, 1169 (C.D. Cal. 2002).
  23. A&M Records v. Napster, 239 F.3d 1004, 1021 (9th Cir. 2001); Perfect 10 v. Cybernet Ventures, 213 F.Supp.2d 1146, 1169 (C.D. Cal. 2002).
  24. Sony Corporation of America v. Universal City Studios, 464 U.S. 417, 434−35 (1983).
  25. The inference of knowledge/intent drawn from access in Columbia Pictures Industries v. Zakarian, 1991 U.S. Dist. LEXIS 6978, at *10 (N.D. Ill. May 22, 1991), cited in Columbia Pictures v. Landa, 974 F.Supp. 1, 17 (D.D.C. 1997) turned on the fact that 144 videocassettes seized from defendant’s business were illegal duplicates of the copyright motion pictures.
  26. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1168 (C.D. Cal. 2002).
  27. A&M Records v. Napster, 239 F.3d 1004, 1020−21 (9th Cir. 2001).
  28. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004).


Voir aussi

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