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Ninth Circuit Says Having an IP Address is Not Enough for Infringement: Cobbler Nevada v. Gonzales



Anyone with an internet connection can find copyrighted content to download—legally or illegally. But the Ninth Circuit has now held that the mere fact that a rightsholder can show an individual is connected to the IP address through which illegal downloading took place is not enough to make out a case for copyright infringement. In Cobbler Nevada v. Gonzales, plaintiff Cobbler owns the rights to a soon-to-be-released movie, copies of which started illegally becoming available through BitTorrent networks. Cobbler identified an IP address located in Portland, Oregon that had downloaded and distributed the movie numerous times without authorization, and brought a John Doe action against the IP address to discover who owned the account. Records subpoenaed from the internet service provider identified defendant Gonzales as the account holder.

However, discovery further showed that a number of people resided at the Gonzales residence (it was a group home) and both residents and visitors could access the internet through the account. Nonetheless, Cobbler amended its complaint to name Gonzales as the defendant, and accused him of both direct infringement (because he was the account holder and had received notices of infringing activity) and contributory infringement (on the theory that he failed to stop the infringement after being notified about it). Gonzales moved to dismiss, the District Court gave Cobbler a number of opportunities to amend, but ultimately dismissed the direct infringement claim without prejudice, and dismissed the contributory infringement claim with prejudice (and awarded Gonzales almost $18,000 in fees and costs). The Ninth Circuit affirmed.

On the direct infringement claim, the Ninth Circuit held that the mere fact that a person is the holder of an account that was used to infringe “does not mean that the internet subscriber is also the infringer.” Merely establishing that correlation, according to the Ninth Circuit, is not sufficient to state a claim for copyright infringement.

Cobbler’s contributory infringement claim was “premised on the bare allegation that Gonzales failed to police his internet account.” According the panel, the Ninth Circuit recognizes two bases for contributory infringement liability: (1) actively encouraging or inducing infringement through specific acts” and (2) distributing a product used to infringe copyright that is not capable of substantial or commercially significant non-infringing uses. The Court found that Gonzales’ failure to secure or police his internet connection was not the same as encouraging or inducing infringement, and that merely providing internet access is not the same as distributing a product designed for infringement. The Ninth Circuit found that imposing a duty on internet account holder to police their internet connection “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.”

But for creators whose works are routinely infringed through BitTorrent and other social networks, actions against individual infringers now become even harder.

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