Julie Cromer Young, Thomas Jefferson School of Law
Rethinking Copyright Pleadings
Historically low pleading standards changed by Twiqbal. Conclusory allegations can be ignored, then remaining judged for plausibility; court can use common sense to see if complaint states a claim. Resolving things at 12(b)(6) skews toward defendant. Pro se complaints now dismissed at higher rate.
Crossover into IP. Courts more willing to require broader facts from copyright plaintiff at 12(b)(6) stage. Also Q of whether 12(b)(6) applies to affirmative defenses—some courts have required the same level of specificity. Her wish list—UK Patents Court, 3 month fast track to (c) litigation. Court decides based on bill of particulars, with option of removing to High Court.
Lydia Pallas Loren, Lewis & Clark Law School
Copyright Litigation Reform Through the Plausibility Standard for Pleadings
Faulkner got her thinking about this—one mechanism by which judge decides case is 12(b)(6). Copyright sj has been messed up for a long time—P had to be given opportunity to present to jury if there was the slightest doubt. But the SCt changed sj, and now it changed 12(b)(6). Result in copyright: lots of cases saying sj is traditionally frowned on in (c) cases, even after the SCt said otherwise; some considered sj more readily, but then were willing to grant sj to the plaintiff—Steinberg.
Peter Gaito Atchitecture v. Simone Dev. Corp., 2d Cir. 2010: 12(b)(6) can be granted when the complaint attaches pictures of the parties’ works. No discovery needed for substantial similarity, because only visual comparison is necessary—court quotes a court’s verdict after a bench trial.
Post-Twiqbal: 54 district court cases in 3 years granting 12(b)(6) dismissals in copyright cases; 21 in 2d Circuit, and 6 of 6 appealed are affirmed. 9th Circuit: 9 cases. Other circuits have fewer. Wide range of works: architectural, musical, literary, PGS, photos, videos, software. Range of issues: ownership, copyrightability (registration, elements copied not copyrightable); copying in fact; substantial similarity; fair use (Brownmark Films—court of appeals converts it into sj on appeal, but 12(b)(6) in dct); license. And even awards of attorneys’ fees!
We’ve been waiting for reform from the copyright office, but we’re getting it in the pleading mechanism. This hoists the originality standard, for example, by telling p not to sue over questionable copyrightability—cases over Z-stools and other pieces of furniture. Faulkner case: don’t assert infringement based on fragments of a work. Respect idea/expression boundaries: cases involving T-shirts with paper airplanes on them; dandelion blowing seeds—court says no reasonable observer could find substantial similarity, which is sj language.
Twiqbal was concerned about cost of discovery/willingness to settle. IP cases have this, but also the public interest: the idea of harassing competitors just by filing suit.
What should we code for?
Q: code for copyright troll cases.
Loren: very few appear to be brought by trolls.
RT: Doesn’t seem to be happening in TM where there would seem to be more things one must plausibly and concretely allege—wonder why not. Would be great to know.
Q: Conventional wisdom: judges are really scared of music, and like it to go to jury—very powerful if this is happening in music too.
Q: Twombly changing the law, or emboldening judges? Many of these cases strike me as clear sj D victories, and obviously so from the start.
Young: yes, we need to collect more pre-Twombly data, to get a sense.
Q: patent policy, the Goodlatte bill being the exception, has gone away from the idea of IP exceptionalism—for example, eBay uses the general common law. But the Goodlatte bill differs by requiring fact pleading to weed out trolls at the earliest point. That narrative of exceptionalism hasn’t been as strong in ©.
Loren: yes, you can see this as © finally getting in line with other cases.
Welkowitz: filtering aspect: you are supposed to filter out conclusions of law and only measure by the allegations that are left. How much of that is in the cases? Also hasn’t seen as much in TM. Have you seen judges say “you’re just pleading conclusions of law,” rather than judges deciding sj motions as 12(b)(6) motions?
Loren: see both. Cases where works are attached, see sj type analysis. Judge Alsop: just dismissed a case where the p pled “D copied our software. D created derivative work.” Those were legal conclusions. What lines of code? How was it derivative?
Don’t count dismissals with leave to amend as dismissals in her coding, unless the court still grants the 12(b)(6) after amendment.
Q: Disputes account that © courts resisted granting sj before Twiqbal. Cases also did say that you have to plead more than “d copied my stuff.” Basic story is correct, but contrast may not be that stark.
Loren: debated about the sj story; not really key to this paper. Some commentators claim Twiqbal wasn’t significant given what dcts were already starting to demand from Ps.
Raizel Liebler, John Marshall Law School
Use of Treatises in Intellectual Property Cases
Law reviews aren’t used much in IP cases, but treatises are more common. Does citing something count as sufficient use to be measured? Ann Bartow’s work focuses on how the material is actually used, but Liebler is starting by asking whether it’s mentioned at all. For example, does the treatise support the claim for which its cited? Recursive nature of the enterprise: it seems that Nimmer doesn’t necessarily follow law, but changing treatise so that law will follow/reinforce the treatise. Are raw numbers more important? What about comparisons to law reviews or other types of secondary sources?
Q: would be interesting to know whether they’re citing the treatise only, or the treatise plus cases? Whether they’re citing it for basic background proposition, or on an important contested issue in the case. (I second this interest.)
Welkowitz: notes that McCarthy has apparently changed his RoP position based on representation. The states enacted McCarthy’s version of the Model TM Law, not the official version published in the TM Reporter—doesn’t know why it’s a different version, but it has a different key word, and somehow the states enacted the unofficial version.
Farley: treatise authors as advocates is a fascinating topic. When McCarthy cites cases citing the treatise, the circularity is eye-opening. McCarthy gives the impression of separating the is and the ought by having a section labeled “author’s note.” But not everything is separated out in that way (including his statements on standing for false advertising, BTW). Could look at citations of treatise authors as law review authors v. citations of treatises—the former might be where we’d expect opinions to go. Could also look at them as authors of amicus briefs.
Q: treatise for noncontroversial points v. treatise as authority, shutting down debate.
Q: Does the spectrum of authority in copyright (Patry v. Nimmer, etc.) lead to more citing of treatises, or less?
A: Nimmer is cited more than Patry, but McCarthy is 10x or more cited than any other treatise. 700x in the last 3 years; others 50x in total. (Though this must be compared to the N, since there are more TM cases than © cases.)
Chris Ridder, Stanford Law School (non-residential fellow)
Uncertainty In IP Address-Based Identification: Protecting The Innocent Internet Service Subscriber
Many households have more than one user; businesses may have many users; many networks are unsecured. 200,000 sued in copyright troll cases—many of them likely innocent. In Digital Sin, 2012, the court said that even 30% made it nervous.
How does this work? File a complaint naming a Doe, then make ex parte motion for expedited discovery. Possible motion to quash; if unmade or unsuccessful, IP address is produced by subpoena to ISP. He thinks further investigation is required; if P can’t name defendant, should subpoena subscriber.
Many standards for early discovery, varying by jurisdiction/type of case. Judge asks: can you survive a motion to dismiss? Do you set forth a prima facie case of actionable harm? Discovery is aimed at identifying specific information.
Good faith basis is required to name a defendant. If P names the only guy with that name in the phone book, that’s not enough for a good faith basis. Complaint must state a claim plausible on its face. Elf-Man v. Cariveau: P didn’t allege that IP address owners were the ones who downloaded. Allegation that IP address is registered to individual isn’t enough to support a claim that this individual is the infringer.
Good cause: reasonable likelihood that information sought would enable identification of infringer. Trolls are really driving the case law. Odious to courts; they don’t really care about jurisdiction. Trolls have the toughest fact pattern because all they have is an IP address, at least in a typical bittorrent situation.
Proposal: courts should if possible resolve threshold issues early, such as jurisdiction, mass joinder, intention to litigate, First Amendment, scope/burden of proposed early discovery/likelihood of leading to identity. AF v. Does, DC Cir., ISPs are appealing allowed discovery even when the ISP didn’t operate in the jurisdiction.
Investigation: if multiple IP addresses can be obtained they should be, and then correlated. Username of bittorrent user, where possible. Courts should permit ISP subpoenas seeking phone number and email; courts worry about harassment/threats but this could be very helpful with restrictions imposed on the questions that could be asked. If informal investigation doesn’t work, should be able to subpoena subscriber, ask about residents, etc. Cops go to great effort to find this out in child porn cases.
Some discovery should rarely be granted: depositions, forensic examination (in absence of showing of discovery misconduct). When naming a party, ps should be specific in setting forth basis for identification and courts should hold them to it.
Ingenuity v. John Doe (Feb. 7, 2013): court interpreted P’s investigation strategy is “if subscriber is 75 years old or female, look for pubescent male in the house and identify him as D.” Not houseguests/visitors. This was nothing more than a hunch.
Q: (1) bittorrent isn’t the only source; (2) want to know how dynamic IP addresses are—was more of a problem with dialup, less with broadband; IPv6 won’t have shared addresses, but still household issue; (3) how does 6 strikes agreement factor into that—gives ISPs even more incentive to keep addresses stable—may be a diminishing problem.
A: it’s possible, but his analysis assumes static IPs.
Loren: trolls send letters to houses saying you’ll be named D, so people settle. The use of subpoena in place of a letter might be worse—that’s very scary.
A: doesn’t propose to let people send that kind of letter. Courts saying “you can’t send letters” make it work in the end. Better way to handle it: some sort of informal contact seeking information.
Q: sensitive to costs of enforcement to copyright owners. Costs of discovery should be proportionate to recovery. Someone who wants legit enforcement may look an awful lot like a troll. In absence of small claims process, what are we to do?
A: many reasons people sue—there is value to disincentivizing infringement that may justify some expense. Motion for early discovery is not so hard. Investigation should really already be occurring. His proposal wouldn’t add much cost, he believes. Need more than IP address.
Q: note that there are many cases on this in Europe. Generally privacy prevails over © so you need judicial authority to get disclosure.