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A Pox on your BitTorrent Tort Action!
July 10, 2012
Thomas Mennecke
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There's no shortage of creative ways to formulate a legal argument. One of the recurring players in the BitTorrent legal saga, Liberty Media, has been a frequent purveyor of the federal courts, as they try to assert their copyrights with varying degrees of success. One of Liberty's productions, "Corbin Fisher's Down on the Farm", is often found in the mounds of legal memos transferring through the justice system. That's the correct name of the title, right?

Well, maybe. In order to have a sustainable copyright action, an important precedent is to accurately portray the copyright you're trying to enforce. Let's take a look at Liberty Media v. Tabora and Whetstone. Their story begins just like any other BitTorrent litigation - Liberty's agents snag their IP address, time stamp, and snapshot of alleged infringing content, and with that information, subpoenas their ISP for the account's personal information. And with that, BitTorrent litigation magic is born...

But just one second...what about having the actual copyright? Oh yes, that's important. For example, can't file a copyright action on a bootleg copy of Star Wars, right? Luckily for Tabora and Whetstone, they did their research when they received their notification of an impending lawsuit. And guess what...the copyright registration associated with the complaint for "Corbin Fisher's Down on the Farm" is copyright number PA 1-698-357. But here's the problem - when Tobora's defense pulled that number, the work is actually titled "Corbin Fisher Amateur College Men Down on the Farm". And that's as much of an "ah-ha" moment as any defense lawyer could dream of.

Mere semantics, you say? There's an old saying that "it's just a technicality!" But technicalities are the true application of the law, and the title that Liberty Media wanted to enforce simply isn't the one in the complaint. Thus, the defendants scored a win in this case, as the court ruled that the case cannot move forward in its current form (but Liberty could refile providing they get the name right).

There's another small twist in the case. It's not a great stretch of the imagination that one might be inclined to file a negligence claim in order to enforce one's property rights. But strangely, Liberty attached a negligence claim against Tabora for failing to put a stop to the alleged activities of Whetstone. "Wait a tic", you might say, "if the allegations are true, isn't that contributory copyright infringement?" Why yes it is! And as per the US copyright law, any rights protected by other laws which give equivalent rights to property are preempted by the US Copyright Act. So, if you attach some other claim that's already covered, it's going to get thrown out - and that's what happened here.

"Liberty nevertheless argues that its negligence claim asserted here is not preempted because, as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer. In light of the preceding discussion and the doctrine of contributory infringement – which Liberty’s memorandum ignores entirely – that position is untenable."

Kids, remember, if you're going to file a copyright claim and attach another complaint that's already covered by the Copyright Act, you're gonna lose. You can read the Order dismissing the case here.

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