Cobbler Nevada, LLC v
Gonzales, 901 F3d 1142, 1146-47 [9th Cir 2018]
Rule
4(m) of the Federal Rules of Civil Procedure requires timely service upon a
defendant – ninety days unless good cause is shown to excuse the failure.[1] Although copyright owners can often trace
infringement of copyrighted material to an IP address, it is not always easy to
pinpoint the particular individual or device engaged in the infringement.[2]
Internet providers, such as Comcast or AT & T, can go so far as to identify
the individual who is registered to a particular IP address (i.e., an account
holder) and the physical address associated with the account, but that
connection does not mean that the internet subscriber is also the infringer.[3]
Simply establishing an account does not mean the subscriber is accessing the
internet, and multiple devices can access the internet under the same IP
address. Identifying an infringer becomes even more difficult where numerous
people live in and visit a facility that uses the same internet service.[4]
The Ninth Circuit upheld dismissal of a claim against an adult foster care home
where the plaintiff could not pinpoint the individual infringer or the device
being used.[5]
The dismissal was pursuant to Rule 4(m) of the Federal Rules of Civil Procedure
that requires timely service upon a defendant.[6] The claims for direct infringement were
dismissed without prejudice: the claims for contributory infringement were
dismissed with prejudice.[7]
The Ninth Circuit noted: while we recognize this obstacle to naming the correct
defendant, this complication does not change the plaintiff's burden to plead
factual allegations that create a reasonable inference that the defendant is
the infringer. Noting that because the
defendant was not a regular occupant of the facility or a likely infringer, the
Ninth Circuit affirmed an award of attorneys fees in his favor.[8]
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Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2018-2019) by Raymond J. Dowd