Ninth Circuit - Internet Protocol Address Subscriber Not Liable For Infringements By Others

The Ninth Circuit made it a lot tougher for copyright owners to sue internet protocol address subscribers for copyright infringements where the infringements were made by third parties using the subscriber's internet accounts.   Here, the defendant subscriber was not a regular occupant of an adult foster care home where the alleged infringement occurred.  Because the pleader did not identify the device causing the infringement and did not timely serve the likely infringer, the action was dismissed for failure of timely service under Rule 4(m) of the Federal Rules of Civil Procedure.   IP address owner held not to be a contributory infringer.

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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[1] Fed.R.Civ.P. 4(m).

[2] Cobbler Nevada, LLC v Gonzales, 901 F3d 1142, 1146-47 [9th Cir 2018]

 

[3] Cobbler Nevada, LLC v Gonzales, 901 F3d 1142, 1146-47 [9th Cir 2018]

 

[4] Cobbler Nevada, LLC v Gonzales, 901 F3d 1142, 1146-47 [9th Cir 2018]

 

[5] Cobbler Nevada, LLC v Gonzales, 901 F3d 1142, 1146-47 [9th Cir 2018]

 

[6] Fed.R.Civ.P. 4(m); Cobbler Nevada, LLC v Gonzales, 901 F3d 1142, 1146 [9th Cir 2018]

 

[7] Cobbler Nevada, LLC v Gonzales, 901 F3d 1142, 1147-48 [9th Cir 2018]

[8] Cobbler Nevada, LLC v Gonzales, 901 F3d 1142, 1150 [9th Cir 2018]

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