However, there is a growing trend of companies connected to mainstream movies aggressively enforcing their rights with a view to obtaining settlements against regular file-sharers, torrent site operators, and even app developers.
Two companies involved in this area are Rambo V Productions, Inc. (Rambo: Last Blood) and Fallen Productions, Inc. (Angel Has Fallen). While mostly active in the United States, two lawsuits filed in Canada’s Federal Court of Toronto in recent days show that their litigation and cash settlement program is beginning to spread.
Filed closely together on February 7, the two statements of claim are almost identical, differing only in respect of movie titles and IP addresses, plus dates and times when the infringing behavior allegedly took place. The Rambo V Productions claim targets 1,218 Doe Defendants, with Angel Has Fallen targeting 2,130.
In common with all related complaints, the claims detail how BitTorrent technology works and how individuals participate in concert with other users in order to download and share movies online, without obtaining permission from the copyright holders.
“Each Doe Defendant has unlawfully, and without the Plaintiff’s authorization or consent, utilized the BitTorrent peer-to-peer network to download and/or unlawfully offer to upload the Work thus infringing the Plaintiff’s copyright in the Work,” the claims read.
In similar cases filed in other jurisdictions, it is common for each defendant to be referenced by a single IP address alongside an alleged date and time of infringement. In these cases, however, all defendants have two dates and times of supposed infringement logged against them, which are spaced several days apart. The reason for this becomes apparent in the following paragraph.
“In accordance with the provisions of s. 41.25 and s. 41.26 of the Copyright Act each Defendant was notified of his or her Unlawful Acts by Notice,” the claims read.
This is a reference to the provisions (1,2) in Canadian law that allow copyright holders to send warning notices to alleged infringers via their service providers. According to the plaintiffs in both cases, each Doe Defendant was sent such a notice but failed to take remedial action.
“The First Notice informed each Defendant that they had been detected by forensic software as offering for upload the Work, and indicated that if the Work was taken down that there would be no action taken as against such Defendant. Each Defendant failed to respond, or refused to respond, to the First Notice and continued his or her Unlawful Acts,” they add.
When no action was taken in response to the first notice, the plaintiffs claim that their counsel sent a second notice to the Doe Defendants, informing them that the copyrighted work was still being made available and that legal action could follow.
“This Second Notice indicated that the work had not been removed and that legal action may be taken as against such Defendant. The Defendant failed or refused to respond to the Second Notice and has continued his or her Unlawful Acts,” the claims note.
While one person is usually named as the customer of an ISP (the person who pays the bill) it is common for other people in a particular household to have access to the same Internet connection via a router. This means that the bill payer may or indeed may not be the person (the Doe Defendant) who committed any of the alleged infringements.
The claims for both Rambo: Last Blood and Angel Has Fallen attempt to cover all bases by stating that even if the bill payer isn’t the direct infringer, he or she is ultimately responsible.
“In that case, the customer should have, and ought to have, the knowledge of who was using the customer’s internet account at the specifically identified date and time,” the claims add. But the responsibility doesn’t end there.
While acknowledging that some of the defendants may not be ‘direct infringers’, the plaintiffs state that through “negligence or wilful blindness” they “authorized others” to infringe after failing to exercise sufficient control over the use of their Internet connections when they knew that infringement was taking place.
“Each Defendant was provided with prior notice (the First Notice) that such Defendant’s internet account was being used in a way that infringed the Plaintiff’s copyright, and yet such Defendant did nothing to prevent or cease the infringement. Each Defendant therefore knew or should have known that their internet account was being used contrary to s. 27(1) and s.27(2) of the Copyright Act,” both claims add.
While the statements of claim state that defendants can be served in either Canada or the United States, both indicate that the listed IP addresses are believed to be located in Canada and that damages and injunctions will be sought as part of the action.
Excess Copyright‘s Howard Knopf believes that the plaintiffs will now attempt to obtain “Norwich Orders” to force the ISPs to hand over the identities of the individuals behind the listed IP addresses. At this stage it’s unclear whether any or all will fight back.