A new copyright troll lawsuit has been filed in the Eastern District of Michigan by the owner of the copyrighted motion picture The Cobbler (Plaintiff). Plaintiff is gathering IP addresses of John Doe defendants that allegedly downloaded The Cobbler without permission using a BitTorrent platform.
Plaintiff’s lawsuit is a classic example of copyright trolling, a term used to describe aggressive litigation against individual consumers. Although copyright trolls legally enforce their rights in creative works, the practice of trolling is looked down upon as not within the spirit of the law. Copyright law serves to incentivize and spur the creation of creative works, not to provide copyright owners an easy money grab once their work has been released.
In the The Cobbler case, attorney Paul J. Nicoletti filed a complaint on behalf of Plaintiff against 26 defendants in the Eastern District of Michigan on May 25, 2015. Defendants will most likely receive communications from their Internet service provider telling them that the ISP will release their information to Plaintiff if the matter is not settled before a certain date.
BitTorrent copyright cases have become a significant category of intellectual property litigation over the past decade. Understanding how these cases work—from initial investigation through settlement demands and potential litigation—is essential for anyone who receives a notice from their ISP or a demand letter from a plaintiff’s attorney.
BitTorrent is a peer-to-peer file-sharing protocol that distributes the download burden across many users rather than a single server. When a user downloads a file via BitTorrent, they simultaneously upload pieces of the file to other users in the “swarm.” This upload component is legally significant: it means that BitTorrent users are not merely receiving copyrighted content, they are also distributing it. The Copyright Act, 17 U.S.C. §106(3), gives copyright owners the exclusive right to distribute their works. Every BitTorrent user who seeds a file is potentially directly infringing that distribution right.
Copyright plaintiffs in BitTorrent cases typically retain a forensic investigation firm that monitors BitTorrent swarms and records the IP addresses of users sharing particular files. The investigator captures a timestamp and IP address for each observed infringer, as well as a “hash” value that cryptographically identifies the specific file being shared. This data forms the evidentiary foundation of the lawsuit.
Because an IP address identifies a network connection rather than an individual, plaintiffs cannot name specific defendants at the outset. Instead, they file suit against “John Does” identified by IP address. The plaintiff then seeks leave from the court to issue a subpoena to the relevant ISP, directing the ISP to identify the account holder associated with each IP address.
ISPs typically notify account holders before complying with the subpoena, giving them an opportunity to file a motion to quash. Courts have generally been reluctant to quash these subpoenas in cases where the plaintiff has presented credible evidence of infringement, but motions to quash on privacy, joinder, or technical grounds have occasionally succeeded.
Once the ISP identifies the account holder, the plaintiff typically sends a settlement demand. These demands frequently range from $3,000 to $10,000, calculated to be less than the cost of defending a federal copyright lawsuit but more than the statutory minimum damages. Statutory damages under 17 U.S.C. §504(c) range from $750 to $30,000 per infringed work for non-willful infringement, and up to $150,000 per work for willful infringement. The settlement math is designed to make defense economically irrational for most individuals.
A critical point that many recipients of ISP notices miss: the IP address associated with a copyright infringement event belongs to a network connection, not to a specific person. In households with multiple residents, shared networks, or open Wi-Fi, the account holder may be entirely innocent. Courts have recognized this limitation. In Malibu Media, LLC v. John Does 1-15 and similar cases, defendants have successfully argued that the IP address evidence alone is insufficient to establish that the account holder was the person who downloaded the file.
This does not mean the litigation goes away. Plaintiffs are aware of this argument and often proceed with discovery aimed at identifying other household members, examining device histories, and building circumstantial evidence connecting the account holder to the alleged download. But it does mean that receiving an ISP notice is not an admission of guilt, and a reflexive settlement payment may not always be the right response.
Many BitTorrent plaintiffs file single lawsuits naming dozens or even hundreds of John Doe defendants, as in the Cobbler case with its 26 defendants. Federal courts have been increasingly skeptical of this practice, finding that merely downloading the same file does not make defendants part of the same transaction or occurrence as required for permissive joinder under Federal Rule of Civil Procedure 20(a). Courts in the Northern District of California, the Eastern District of New York, and elsewhere have severed misjoined defendants and required plaintiffs to file individual actions—a requirement that significantly increases the cost of the trolling model and has forced many plaintiffs to abandon claims against most defendants.
If you receive an ISP notice informing you that a copyright holder has subpoenaed your account information in connection with a BitTorrent lawsuit, you should take the following steps:
One important consideration in BitTorrent copyright litigation is the statute of limitations. Under 17 U.S.C. §507(b), civil copyright infringement claims must be filed within three years after the claim accrues. The Supreme Court in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), held that the statute runs separately for each discrete act of infringement, meaning that older acts of alleged downloading may be time-barred even if more recent ones are not. Defense counsel in BitTorrent cases routinely examine the timestamps associated with the IP address evidence to determine whether any alleged infringement falls outside the three-year window.
Many BitTorrent plaintiffs rely on volume to make their litigation model profitable: file against many defendants, collect small settlements from most of them, and dismiss claims against those who defend vigorously. This means that defendants who are willing and able to mount a credible defense—including challenging the technical evidence, contesting the joinder, and asserting affirmative defenses—are more likely to be dismissed or receive significantly reduced settlement demands. The economics of copyright trolling are only favorable to plaintiffs when defendants capitulate without a fight. Consulting an attorney before agreeing to any settlement is essential.
If you have been named in this lawsuit or any similar BitTorrent copyright lawsuit, please contact Revision Legal’s expert copyright attorneys at 855-474-8474.
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