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.
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