Monday, May 16, 2016

Killer Copyright Trolls: Can't The Jane Does Of The World Make Them Pay?

If someone sues you for a copyright infringement you didn't commit and the case gets dismissed, shouldn't you get your attorneys fees?  In Killer Joe Nevada LLC v. Does 1-20, 807 F.3d 908 (8th Circuit 2015), the United States Court of Appeals for the Eighth Circuit considered a case in which a plaintiff filed a complaint identifying the defendants only by internet protocol ("IP") address that had downloaded a film using Bittorent.  Killer Joe Nevada subpoenaed the internet service providers ("ISP"s) and got defendant Leigh Leaverton's name.   Leaverton denied downloading the film Killer Joe and filed a counterclaim for a declaratory judgment that she had not infringed Killer Joe Nevada's copyright.   In response, Killer Joe Nevada voluntarily dismissed the action.

If you Google "Killer Joe Nevada LLC" you will find the website of Antonelli law, dedicated to fighting copyright trolls and offering a free consultation.

Leaverton sought her attorneys fees, which the district court denied.  In certain actions under the Copyright Act, the district court has discretion to award attorneys fees.  In denying Leaverton her attorneys fees, the Eighth Circuit found that Killer Joe Nevada had acted reasonably in suing the IP addresses and in subpoenaing the ISPs.  It is unclear from the Eighth Circuit's decision what evidence Killer Joe Nevada relied on in bringing the suit or whether Killer Joe Nevada could have given Leaverton the opportunity to respond before naming her personally in the lawsuit.

Understanding when attorney fees may be available under the Copyright Act is not a simple task, as recent litigation before the U.S. Supreme Court has shown.  My book Copyright Litigation Handbook (Thomson Reuters West 2015-2016) devotes an entire chapter to the questions of whether and when attorneys fees and costs are available in a copyright litigation.

For the Eighth Circuit's full opinion, go here.
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

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