Case 3:12-cv-01519-BTM-BLM Document 14 Filed 01/29/13 Page 1 of 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AF HOLDINGS LLC, 12 Case No. 12cv1519 BTM(BLM) Plaintiff, ORDER GRANTING IN PART MOTION TO DISMISS v. 13 14 CHRIS ROGERS, Defendant. 15 16 Defendant Chris Rogers has filed a motion to dismiss Plaintiff's complaint for failure 17 to state a claim. For the reasons discussed below, the Court GRANTS Defendant's motion 18 to dismiss as to Count Three and defers ruling on the motion to dismiss as to Counts One 19 and Two. 20 21 I. BACKGROUND 22 Plaintiff's First Amended Complaint ("FAC") asserts claims of (1) copyright 23 infringement; (2) contributory infringement; and (3) negligence against Defendant Chris 24 Rogers. 25 Plaintiff alleges that Defendant unlawfully downloaded, reproduced, and distributed 26 copies of Plaintiff's adult entertainment video, "Popular Demand" (the "Video") using a peer27 to-peer file-sharing tool known as BitTorrent. Plaintiff alleges that Defendant was the user 28 of IP address 68.8.137.53 at the time of the illegal download. 1 12cv1519 BTM(BLM) Case 3:12-cv-01519-BTM-BLM Document 14 Filed 01/29/13 Page 2 of 7 1 II. STANDARD 2 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted 3 only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to 4 support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th 5 Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's 6 complaint are taken as true and construed in the light most favorable to the plaintiff. See 7 Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 8 detailed factual allegations are not required, factual allegations "must be enough to raise a 9 right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555 10 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires 11 more than labels and conclusions, and a formulaic recitation of the elements of a cause of 12 action will not do." Id. "[W]here the well-pleaded facts do not permit the court to infer more 13 than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] 14 that the pleader is entitled to relief." Ashcroft v. Iqbal, 565 U.S. 662, 679 (2009) (internal 15 quotation marks omitted). Only a complaint that states a plausible claim for relief will survive 16 a motion to dismiss. Id. Although 17 18 III. DISCUSSION 19 Defendant moves to dismiss the FAC on the ground that Plaintiff has failed to state 20 a claim. As discussed below, the Court finds that dismissal is warranted as to Count Three 21 and orders a more definite statement with respect to Counts One and Two. 22 23 24 A. Copyright Act Claims In Counts One and Two, Plaintiff sues Defendant for direct copyright infringement as 25 well as contributory infringement under the Copyright Act. In his motion to dismiss, 26 Defendant argues that these claims should be dismissed because the FAC lacks sufficient 27 facts regarding Defendant's involvement in the infringing activity. 28 2 12cv1519 BTM(BLM) Case 3:12-cv-01519-BTM-BLM Document 14 Filed 01/29/13 Page 3 of 7 1 The FAC alleges that Defendant, using IP address 68.8.137.53, participated in the 2 swarm that downloaded and distributed the Video on May 7, 2012. (FAC ?? 4, 22.) This 3 factual allegation is probably sufficient under Rule 12(b)(6). See Form 19 of the Fed. R. Civ. 4 P. 5 However, the Court is concerned about the lack of facts establishing that Defendant 6 was using that IP address at that particular time. Indeed, the FAC does not explain what 7 link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued 8 Defendant because he is the subscriber to IP address 68.8.137.53. (The Court notes that 9 it is actually unclear whether the IP address is registered to Defendant). As recognized by 10 many courts, just because an IP address is registered to an individual does not mean that 11 he or she is guilty of infringement when that IP address is used to commit infringing activity. 12 In In re Bittorrent Adult Film Copyright Infringement Cases, 2012 WL 1570765, at *3 13 (E.D.N.Y. May 1, 2012), the district court explained that "it is no more likely that the 14 subscriber to an IP address carried out a particular computer function . . . than to say an 15 individual who pays the telephone bill made a specific telephone call." The court explained 16 that due to the increasing popularity of wireless routers, it is even more doubtful that the 17 identity of the subscriber to an IP address correlates to the identity of infringer who used the 18 address: 19 20 21 22 23 24 25 While a decade ago, home wireless networks were nearly non-existent, 61% of U.S. homes now have wireless access. Several of the ISPs at issue in this case provide a complimentary wireless router as part of Internet service. As a result, a single IP address usually supports multiple computer devices--which unlike traditional telephones can be operated simultaneously by different individuals. See U.S. v. Latham, 2007 WL 4563459, at *4 (D.Nev. Dec.18, 2007). Different family members, or even visitors, could have performed the alleged downloads. Unless the wireless router has been appropriately secured (and in some cases, even if it has been secured), neighbors or passersby could access the Internet using the IP address assigned to a particular subscriber and download the plaintiff's film. Id. at *3. 26 Because the subscriber of an IP address may very well be innocent of infringing 27 activity associated with the IP address, courts take care to distinguish between subscribers 28 and infringers. Courts limit discovery regarding Doe defendants in BitTorrent cases to 3 12cv1519 BTM(BLM) Case 3:12-cv-01519-BTM-BLM Document 14 Filed 01/29/13 Page 4 of 7 1 ensure that potentially innocent subscribers are not needlessly humiliated and coerced into 2 unfair settlements. See Discount Video Center, Inc., v. Does 1-29, 285 F.R.D. 161, 166 (D. 3 Mass. Aug. 10, 2012) ("Moreover, the improper assertion in the Notice [attached to 4 subpoenas] that subscribers are Defendants is significant in that it might well cause innocent 5 subscribers . . . to accede to unreasonable settlement demands.") See also Digital Sin, Inc. 6 v. Does 1-176, 279 F.R.D. 239, 242 (S.D.N.Y. 2012) (issuing a protective order with respect 7 to discovery regarding subscriber information because the "risk of false positives" gives rise 8 to the potential that unjust settlements will be coerced from innocent defendants who want 9 to avoid having their names publicly associated with films with suggestive titles). 10 Due to the risk of "false positives," an allegation that an IP address is registered to an 11 individual is not sufficient in and of itself to support a claim that the individual is guilty of 12 infringement. In AF Holdings LLC v. Doe, 2013 WL 97755, at *8 (N.D. Cal. Jan. 7, 2013), 13 one of the reasons the court denied plaintiff leave to file an amended complaint alleging that 14 a particular individual, Hatfield, infringed plaintiff's copyrighted material, was that the 15 amended complaint alleged "no facts showing that Hatfield infringed AF Holdings' 16 copyrighted material, apart from the facts that were previously alleged and that have been 17 known to AF Holdings for more than a year - in particular, that the IP connection through 18 which the material was downloaded is registered to Hatfield." 19 As mentioned above, Plaintiff alleges that Defendant, using IP address 68.8.137.53, 20 participated in the swarm that downloaded and distributed the Video on May 7, 2012. Under 21 Rule 11(b)(3), Plaintiff's counsel certified that to the best of his knowledge, this factual 22 contention has evidentiary support. However, due to the potential for abuse in these types 23 of cases, the Court wants to make sure that Plaintiff's contention is supported by evidence 24 that goes beyond the identity of the subscriber to the IP address. Therefore, the Court 25 orders Plaintiff to provide a more definite statement setting forth the factual basis for its 26 allegation that Defendant used IP address 68.8.137.53 to infringe its copyright.1 27 1 28 In its Opposition, Plaintiff states in a footnote that "Plaintiff's allegations and identification of Defendant are based off of much more information than a lone IP address . . . ." Plaintiff does not, however, specify what information it has. 4 12cv1519 BTM(BLM) Case 3:12-cv-01519-BTM-BLM Document 14 Filed 01/29/13 Page 5 of 7 1 B. Negligence Claim 2 In Count Three, Plaintiff alleges that Defendant was negligent in either (1) failing to 3 secure his internet connection, thereby allowing someone to use his internet account to copy 4 and share Plaintiff's Video over the BitTorrent protocol, or (2) permitting someone to use his 5 internet connection to infringe Plaintiff's copyright. 6 To the extent that Plaintiff claims that Defendant knew that someone was using his 7 internet connection to copy and share Plaintiff's Video, Plaintiff's negligence claim is 8 preempted by the Copyright Act. 17 U.S.C. ? 301. The preemption analysis under the 9 Copyright Act is a two-step inquiry. Valente-Kritzer Video v. Pinckney, 881 F.2d 772, 776 10 (9th Cir. 1989). First, it must be determined whether the work at issue falls within the subject 11 matter of copyright as described in 17 U.S.C. ?? 102 and 103. Id. at 776. Second, it must 12 be determined whether the state law claim is equivalent to any of the exclusive rights within 13 the general scope of copyright as set forth in 17 U.S.C. ? 106. Id. The state law claim must 14 have an "extra element" which changes the nature of the action to survive preemption. Id. 15 Plaintiff's Video is within the types of work protected by the Copyright Act. 16 Furthermore, to the extent Plaintiff's negligence claim rests on the theory that Defendant 17 allowed someone else to use his internet connection even though Defendant knew or had 18 reason to know that the individual was infringing Plaintiff's copyright, Plaintiff's claim is 19 equivalent to a contributory copyright infringement claim. A person can be held liable for 20 contributory copyright infringement if he or she knowingly encourages or assists the 21 infringement. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir. 2001). 22 Thus, Plaintiff's negligence claim, to the extent it rests upon a theory of knowing facilitation 23 of infringement, is preempted. See Liberty Media Holdings, LLC v. Tabora, 2012 WL 24 2711381 (S.D.N.Y. July 9, 2012) (holding that state law claim of negligence, alleging that 25 defendant knew someone was using his internet connection to pirate copyrighted motion 26 pictures, fell squarely within the realm of contributory copyright infringement and was 27 preempted). 28 To the extent that Plaintiff's negligence claim alleges that Defendant failed to properly 5 12cv1519 BTM(BLM) Case 3:12-cv-01519-BTM-BLM Document 14 Filed 01/29/13 Page 6 of 7 1 secure his internet connection or failed to properly monitor the use of his secured internet 2 connection by others, Plaintiff's claim fails because there is no underlying duty. One who 3 fails to act to protect another is generally not liable for breaching a duty unless there is a 4 special relationship giving rise to a duty to act. Mid-Cal National Bank v. Federal Reserve 5 Bank of San Francisco, 590 F.2d 761, 763 (9th Cir. 1979). There is no special relationship 6 between Plaintiff and Defendant which gives rise to a duty on the part of Defendant to 7 ensure, through heightened security measures and hawkish monitoring of internet usage, 8 that nobody uses his internet connection to infringe Plaintiff's copyright. See AF Holdings, 9 LLC v. Doe, 2012 WL 4747170, at *5 (N.D. Cal. Oct. 3, 2012) ("AF Holdings has not alleged 10 any special relationship basis for imposing on Botson a legal duty to take affirmative steps 11 to prevent the infringing activity that allegedly occurred over Botson's Internet connection."); 12 AF Holdings, LLC v. Doe, 2012 WL 3835102, at *3 (N.D. Cal. Sept. 4, 2012) (dismissing 13 negligence claim due to lack of any special relationship giving rise to a duty to protect AF 14 Holdings' copyrights). As expressed by one district court, "[C]ommon sense dictates that 15 most people in the United States would be astounded to learn that they had such a legal 16 duty." New Sensations, Inc. v. Does 1-426, 2012 WL 4675281, at *6 (N.D. Cal. Oct. 1, 17 2012).2 18 19 20 IV. CONCLUSION 21 For the reasons discussed above, Defendant's motion is GRANTED as to Count 22 Three, which is DISMISSED. The Court defers ruling on the motion to dismiss Counts One 23 and Two and ORDERS that Plaintiff provide a more definite statement setting forth the 24 factual basis for Plaintiff's allegation that Defendant used IP address 68.8.137.53 to infringe 25 its copyright. Plaintiff shall file a Second Amended Complaint containing the more definite 26 statement within 20 days of the entry of this order. Failure to do so will result in the 27 2 28 The Court does not reach Defendant's argument that Plaintiff's negligence claim is barred by because Defendant has immunity under the Communications Decency Act, 47 U.S.C. ? 230. 6 12cv1519 BTM(BLM) Case 3:12-cv-01519-BTM-BLM Document 14 Filed 01/29/13 Page 7 of 7 1 dismissal with prejudice of Counts One and Two. 2 IT IS SO ORDERED. 3 DATED: January 29, 2013 4 5 BARRY TED MOSKOWITZ, Chief Judge United States District Court 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 12cv1519 BTM(BLM)