he mass copyright trolling campaign, while not nearly as severe as in the past or chaotic as in the UK, remains a lingering issue in the United States. The massive effects of copyright trolling, which involves planting copies of movies on the BitTorrent realm and nabbing IP addresses as the file uploads, has been blunted by the improprieties of Prenda. Remnants are still abound, but the crackdown on this practice continues to glow hot.

In a ruling out of the Federal District Court in Washington State, the court granted the defense a motion to dismiss their case in Elf-Man, LLC v. Eric Cariveau. Now mind you, a motion to dismiss is one of the first things a lawyer will do in litigation, way before anything even resembling a trial begins. It’s essentially a tool used by both sides to get a case tossed out of court, usually because the lawyers find a defect or serious error in the opposing side’s argument. And as CopyrightTrolls.com points out, it’s not easy or typical to get a motion to dismiss granted. Why? Because the standard is generally low – the opposing side’s paperwork or argument has to be so derelict that no judicial cure can push the paperwork through. In other words, your work has to suck.

And that’s where the copyright trolls come in.

Apparently, a lot of people like the movie “Elf-Man”, a timeless holiday classic known for its uplifting storyline, complex characters and infectious melodrama. Ok, maybe that’s an overstatement. But apparently, whoever owns the film is upset that people actually know/care enough about this movie to show interest in it. This initiated the litigation in question.

The court here has a question to confront when it handles such motions – do the facts (accepted as true), amount to a plausible enough story that the defendant could be liable of the illegal act? This question is distinguished by a mere possibility that a defendant is liable. Now remember – whatever you submit to the court will be accepted as true, at least initially. So as you can imagine, it’s very difficult for this initial process to fail. But there are always copyright trolls to buck the trend.



As the court point out, the argument has to cross “the line between possible and plausible.” Here, the argument on part of the copyright trolls spectacularly fails to do so. Why? Because of reliance on the alleged infringer’s IP address. And as many already know, the reliance of an IP address to identify a person is at best dubious, since an IP address may just as well identify a printer or refrigerator as well. You don’t like it, and the court didn’t either.

“[I]dentifying the account holder tells us very little about who actually downloaded “Elf-Man” using that IP address. As one court noted, “it is no more likely that the subscriber to an IP address carried out a particular computer function . . . than to say an individual who pays the telephone bil made a specific telephone call.” In re BitTorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765, at *3 (E.D.N.Y. May 1, 2012). In fact, it is less likely. Home wireless networks are ubiquitous, meaning that a single IP address can simultaneously support multiple computer devices throughout the home and, if not secured, additional devices operated by neighbors or passersby. Thus, the risk of false positives is very real. Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 243 (S.D.N.Y. 2012). It is not clear that plaintiff could, consistent with its obligations under Fed. R. Civ. P. 11, make factual contentions regarding an internet subscriber’s infringing activities based solely on the fact that he or she pays the internet bill.”

Ouch. So all of that good stuff is essentially the authority the court is resting their opinion on. And based on the already existing rules surrounding the theory of identifying an individual, and then tying that identification to one of the existing theories of copyright infringement such as direct, indirect, contributory or vicarious infringement, a successful pleading is possible. But simply saying that someone had an IP address, and then asking the court to make a leap of faith that the IP address is the person in question is simply too tall of a tale for the court to buy.

“…a particular defendant may have directly and intentionally stolen plaintiff’s copyrighted material, or she may simply have “facilitated” unauthorized copying by purchasing an internet connection which an unidentified third party utilized to download “Elf-Man.” Plaintiff provides no factual allegations that make one scenario more likely than the other: both are merely possible given the alternative allegations of the complaint.”

Arguably, the court sets a rather high standard to which a copyright troll could survive a motion to dismiss.

“Plaintiff has not alleged that a named defendant has the BitTorrent “client” application on her computer, that the download or distribution is in some way linked to the individual subscriber (as opposed to her account), that the defendant has acknowledged personal involvement in the download and distribution, or even circumstances which might increase the likelihood that the subscriber is the infringer (such as defendant’s living arrangements or network details).”

So maybe, if a copyright troll had an IP address and perhaps a Facebook status update to the effect, “OMGz I just downloaz the best movie elfman!11111”, then maybe there would be a case. But if, as the court suggests, a copyright troll merely “guesses” an alleged infringer uploaded a copyright file, rather than dedicating effort to determine whether the infringement was the result of a third party stealing bandwidth from an unsecured connection, such a pleading will never succeed.