A federal court in the District of Washington has denied a counterclaim for abuse of process against a BitTorrent copyright troll. The claim in question was filed by a retired police officer. It's clear, however, that the accused man is not the infringer and both parties are now instructed to reach an agreement to cover the defendant's costs.
Every year, so-called ‘copyright trolls’ sue thousands of people in the United States for online file-sharing, mostly through BitTorrent.
These companies target people whose connections were allegedly used to download and share infringing videos, in the hope of obtaining a significant financial settlement.
While many of the defendants may indeed be guilty, a number of accused Internet subscribers have done nothing wrong. This is also what a John Doe, known by the IP-address 73.225.38.130, has repeatedly argued before a federal court in Seattle, Washington.
The defendant in question was sued by Strike 3 Holdings late 2017. In common with other defendants, the man was offered a settlement to let the case go, but instead, he went on the offensive.
When the man pushed back, Strike 3 Holdings was ready to let the case go. The company filed a motion to voluntarily dismiss all claims but the defendant, a 70+-year-old retired policeman, wasn’t willing to let them. At least not without getting paid.
The defendant submitted a counterclaim accusing Strike 3 of abuse of process and “extortion through sham litigation.” The man accused the rightsholder of going on a “fishing expedition,” while knowing that it couldn’t link the subscriber of the IP-address to any specific infringement.
As part of this fishing expedition, the rightsholder also allegedly misused the discovery process to explore whether the man’s son, other family members or friends engaged in any infringement activity.
Strike 3, for its part, moved for summary judgment asking the court to dismiss that counterclaim. The company stressed that it did nothing wrong and merely wanted to find out who the real infringer was.
After reviewing the positions from both sides, US District Judge Thomas Zilly decided to dismiss the abuse of process claim.
The defendant argued that an IP-address alone is not enough to identify an infringer. This is in part based on an Appeal Court ruling that came in after Strike 3 had voluntarily dismissed its infringement claim. As such, the company can’t be judged by this standard, Judge Zilly argues.
In addition, Strike 3’s efforts to go after the man’s son and other family members are no grounds for abuse of process either, the Court ruled.
“Strike 3 was entitled to pursue a theory of defense that another member of defendant’s household or someone with access to defendant’s IP address had infringed one or more of Strike 3’s motion pictures via the BitTorrent network, which would undermine defendant’s allegation that Strike 3’s copyright infringement claim was frivolous and asserted for purely extortionist or other improper purposes,” the Judge notes.
The ruling is a setback for the defendant, but it’s not the end of the case yet. The retired police officer has also requested a declaratory judgment that he has not himself infringed any of Strike 3’s copyrighted works. This request remains pending and the court has instructed both parties to reach an agreement.
Strike 3 previously said that it was willing to declare that the defendant didn’t infringe its works and Judge Zilly encouraged the parties to file a proposed judgment on what costs and fees the copyright holder must pay, if any.
“With respect to attorney’s fees and costs, the parties shall attempt to reach agreement concerning whether and, if so, how much defendant should receive, bearing in mind that, under the Copyright Act, attorney’s fees are discretionary, and the Court may decline to award them,” Judge Zilly writes.
At the time of writing a proposed judgment has yet to be submitted. Whether Strike 3 is willing to pay (part) of the fees and costs remains to be seen. If both parties can’t come together, the Judge will have the final say.
A copy of United States District Judge Thomas Zilly’s order is available here (pdf).
