Introduction
A company discovers that a user downloaded its copyrighted movie using BitTorrent.1 The company cannot identify the user but, luckily, it does have the user’s Internet Protocol address (IPA).2 Seeking to defend its copyright, the company sues for copyright infringement, listing a John Doe and his IPA as the defendant.3 The company then moves for expedited discovery to subpoena the user’s internet service provider (ISP) to identify the internet subscriber.4 Armed with the user’s identity, the company offers to settle. Some defendants agree to settle, perhaps because they were caught red-handed and are being offered an olive branch, or perhaps because they are innocent but fear protracted litigation.5
If the defendant chooses not to settle, the company amends its complaint to name the defendant.6 The defendant files a motion to dismiss, arguing that the company did not state a plausible claim for copyright infringement against him. How can the company know that he was the downloader? All the company knows is that the defendant’s IPA was associated with infringement. Anyone using the internet connection could be responsible, as anyone using the connection could have downloaded the movie, not just the internet subscriber.7
This is typical of BitTorrent litigation and illustrates the unique procedural problems raised by such lawsuits. At the pleadings stage of a lawsuit, a plaintiff is not entitled to discovery and, to survive a motion to dismiss, the complaint must allege facts that state a plausible claim for relief from the defendant.8 Does a complaint that only alleges that the defendant is the subscriber of an IPA associated with copyright infringement satisfy this standard?
In 2018, the Ninth Circuit Court of Appeals decided Cobbler Nevada, LLC v. Gonzales,9 a seminal case in the world of BitTorrent litigation.10 Cobbler answered this question in the negative, creating a rule that heightens pleading requirements for BitTorrent plaintiffs in the Ninth Circuit.11 This rule has been followed by district courts throughout the country,12 which, before Cobbler, were split on this question.13
BitTorrent lawsuits may be used by companies to protect their copyrights, but they can also be used as a predatory method to monetize infringement and force frightened defendants into settlements, irrespective of whether the defendants actually infringed.14 Cobbler helped remedy this problem by providing extra protection for defendants—a complaint that merely alleges a connection between the subscriber of an IPA and copyright infringement associated with his IPA cannot survive a motion to dismiss.15 In so doing, Cobbler also created a significant obstacle for plaintiffs, requiring them to allege additional facts connecting the defendant to an instance of infringement.16 If these additional facts are pleaded, a complaint may survive a motion to dismiss, allowing plaintiffs to vindicate their rights against infringers.17
This Comment argues that the Ninth Circuit’s creation of a heightened pleading requirement in BitTorrent lawsuits was correct and based on an accurate interpretation of the plausibility pleading standard, and that Cobbler’s holding should be adopted by district courts throughout the United States.18 In reaching this conclusion, this Comment will explore the intersection between the plausibility pleading standard, BitTorrent technology, and copyright law.19
Part I of this Comment provides a background on BitTorrent technology, how BitTorrent is used for copyright infringement, BitTorrent lawsuits, and how the plausibility pleading standard was applied in BitTorrent cases before Cobbler.20 Part II proceeds by reviewing the facts, procedural history, and holding of Cobbler.21 Part III argues that the Ninth Circuit’s creation of a rule that heightens pleading requirements in BitTorrent lawsuits was correct and based on an accurate interpretation of the plausibility pleading standard.22 Part IV examines how Cobbler has affected subsequent BitTorrent cases, both in the contexts of motions to dismiss and expedited discovery motions, and how Cobbler should be applied in future BitTorrent lawsuits.23
I. Background
A. A Bit(Torrent) of History and an Explanation of BitTorrent Protocol
When an internet user downloads a file from a website, the user typically uses the “traditional client-server downloading” method.24 With the traditional method, a user clicks on a link to download a file, and the client tells the server to transfer a copy of the file to the user’s computer.25 The traditional method is affected by variables that may slow download speeds, such as the numbers of users accessing the server and computers attempting to download the file.26 Alternatively, a user may download a file using peer-to-peer (P2P) file sharing, where the user does not download the file from a server, but from other internet users using ordinary computers.27
BitTorrent is a decentralized P2P technology designed for efficiently transferring large files.28 When an internet user downloads a file using BitTorrent, the user downloads a “.torrent” file29 from a website known as an “indexer” or “tracker.”30 A .torrent file is opened with BitTorrent client software, which communicates with the tracker to find other computers that have the complete file or portions of the file.31 The desired file is not being downloaded from the tracker itself, but from other BitTorrent users.32 The tracker helps the BitTorrent client trade pieces of the file with other computers downloading the file.33 Collectively, this group of computers is known as a “swarm.”34 The BitTorrent client downloads portions of the desired file in small pieces and starts to upload those portions to other downloaders in the swarm.35 Thus, everyone downloading from the swarm is also uploading and distributing parts of the file to the swarm.36
When all the pieces of the file are downloaded by the BitTorrent client, they are reassembled into a complete file, allowing the downloader to access the file.37 The decentralized nature of the BitTorrent protocol can be advantageous for downloading large files because it avoids overloading a server, which can occur with the traditional method.38 Furthermore, with BitTorrent, the more people who are downloading the file, the faster the download speeds.39 Because BitTorrent allows for large files to be downloaded quickly, it can be a useful tool for downloading movies, music albums, video games, or computer software.40 However, because these media files may be copyrighted works, users may infringe on others’ copyrights when downloading and uploading these files, thus exposing themselves to potential copyright infringement suits.41
B. Copyright Infringement Through BitTorrent
The “Patent and Copyright Clause” of the United States Constitution gives Congress the power to secure for authors and inventors the exclusive right to their writings and discoveries.42 Congress exercised this power by passing the Copyright Act, giving copyright owners the exclusive right to reproduce and distribute their copyrighted works and authorize others to do so.43 If a copyright is violated, the legal or beneficial owner of the copyright may sue the infringer in federal court.44 In order to succeed in a copyright infringement claim, a copyright owner must establish (1) ownership of a valid copyright and (2) that the defendant violated the copyright owner’s exclusive rights under the Copyright Act.45 Courts may award a copyright owner statutory damages ranging from $750 to $150,000 for each infringed work.46
When a BitTorrent user downloads a copyrighted work, they are copying the file on their computer and sharing the work with other BitTorrent users.47 As a result, they are violating the copyright owner’s exclusive rights to reproduce and distribute their copyrighted works under the Copyright Act.48 A copyright owner may choose to sue a BitTorrent user and, in the complaint, allege that the user downloaded and illegally distributed the plaintiff’s copyrighted work.49 In typical BitTorrent cases, the copyright owner asserts that the defendant participated in the BitTorrent swarm and, therefore, illegally copied and distributed the work.50 In the first half of 2018, more than 3,300 cases were filed against BitTorrent users, and most of them were filed by two companies.51
BitTorrent is widely used for illegal file sharing, but can also be legitimately used to distribute free data to the public and confidential data to trusted sources.52 For example, Blizzard Entertainment, the company behind the popular video games World of Warcraft and Overwatch, has used its own BitTorrent client to distribute its games to purchasers.53 Ubuntu, a popular free computer operating system, can be downloaded through a .torrent file on its official website.54 Facebook has used BitTorrent to distribute large amounts of data to different internal servers.55 Although BitTorrent is often used for piracy,56 it is useful for quickly distributing large files to many people without requiring the distributor to pay for a server.57
C. How a BitTorrent Lawsuit Begins: From Anonymous Number to Identifiable Defendant
A copyright owner who wants to protect their intellectual property rights may choose to sue a BitTorrent user who downloaded their copyrighted work without permission.58 To find such a user, a copyright owner monitors a BitTorrent swarm and documents the IPAs of the peers trading pieces of its work.59 An IPA is a series of numbers specific to a network connection that is used to locate an individual connection on the internet.60 An IPA may host several devices connected to the same network, so the IPA may be associated with multiple devices operated and owned by different people on the same network.61 This IPA is a public IPA, which is assigned to an internet connection by an ISP.62 In contrast, devices connected to the network are assigned private IPAs by an internet router and the private IPAs are not reachable from the internet.63 Geolocation technology can be used to find the approximate physical location of an IPA, but not its exact location.64 To avoid being found, a prudent pirate can use a virtual private network (VPN) to replace his IPA with one in a different location.65 Once a copyright owner has the IPAs of those participating in the swarm, the owner may decide to sue.66
The copyright owner starts by filing a complaint in federal court alleging copyright infringement against a “John Doe” defendant, using the defendant’s IPA.67 This complaint contains the downloader’s IPA and the copyrighted works they are alleged to have downloaded, but not the defendant’s name, because the plaintiff does not know the defendant’s identity.68 The plaintiff then files an ex parte69 motion for expedited discovery to subpoena the ISP associated with the IPA to provide identifying information about the internet subscriber.70 Often, an ISP will inform the subscriber before responding to a plaintiff’s subpoena, allowing the subscriber of the IPA to file a motion to quash the subpoena.71 This type of expedited discovery is atypical, as a party usually cannot move for discovery before a Rule 26(f) discovery conference.72 However, courts may allow for expedited discovery when the defendant’s identity is unknown, to allow the plaintiff to obtain identifying facts necessary to permit service on the defendant.73
In the Ninth Circuit, courts may find good cause for granting early discovery motions to determine a defendant’s identity unless it is clear that early discovery would not allow the plaintiff to identify the defendant, or that the complaint would be dismissed on other grounds.74 District courts in the Ninth Circuit apply a three-factor test when considering these motions: whether (1) the plaintiff identified the missing party with enough specificity for the court to determine that the defendant is a person or entity who can be sued in federal court; (2) the movant described all the steps taken to locate the defendant to ensure that the plaintiff has made a good faith effort to identify and serve the defendant; and (3) the plaintiff has established that the complaint could survive a motion to dismiss.75
District courts in the Ninth Circuit have wrestled with whether an IPA, by itself, is sufficient to satisfy the first factor; some have held it is satisfied with the Doe’s IPA on the date of the alleged infringement and the Doe’s approximate location,76 while others have determined that merely providing the Doe’s IPA on the date of the alleged infringement is sufficient.77 The second factor is simpler for plaintiffs to satisfy and, at this stage of the lawsuit, there is not much else the plaintiff can do to identify the Doe except subpoena the ISP.78 The third factor is directly affected by the Cobbler decision because BitTorrent plaintiffs in the Ninth Circuit now cannot survive a motion to dismiss when all that ties the defendant to the alleged infringement is an IPA.79
If a court grants an expedited discovery motion, the plaintiff will subpoena the ISP for information identifying the subscriber of the IPA, which includes their name, address, telephone number, and media access control (MAC) address.80 With this information, a plaintiff can send a settlement letter to the subscriber.81 These letters typically warn the subscriber of the potential statutory damages82 and offer to drop the lawsuit if the defendant settles.83
These settlement letters can be enticing; they promise to release all legal claims while scaring defendants by informing them of the maximum statutory damages.84 The letters encourage quick settlements by giving defendants the option to settle for a few thousand dollars now, rather than possibly having to spend hundreds of thousands of dollars later.85 For infringers, this is a generous bargain, allowing them to avoid federal litigation and steep statutory damages.
However, some argue that these settlement letters are predatory; BitTorrent plaintiffs can use their ownership of intellectual property to coerce large settlements from frightened defendants as part of a strategy to monetize infringement.86 For infringers, a settlement letter is an olive branch. However, noninfringers are often misidentified as infringers and coerced into settlements.87 Plaintiffs’ use of a strategy that monetizes infringement and indiscriminately targets defendants has led some to call these plaintiffs “copyright trolls.”88 This strategy is especially effective when a defendant is accused of downloading pornography because—if the lawsuit proceeds—their name will be forever associated with pornography.89 In sum, the high cost of federal litigation and the threat of damages may compel a settlement, even if the defendant did not download the plaintiff’s work.90
If the defendant refuses to settle, the plaintiff may move forward with the lawsuit and amend the original complaint to include the defendant’s name.91
D. The Plausibility Pleading Standard: A BitTorrent Defendant’s Best Friend
A defendant may choose to respond to a complaint with a motion to dismiss for failure to state a claim (a Rule 12(b)(6) motion).92 The Federal Rules of Civil Procedure require that a complaint contain a short and plain statement of the claim that shows that the plaintiff is entitled to relief.93 In 1957, the Supreme Court decided Conley v. Gibson,94 which only required that a complaint give fair notice of what the plaintiff’s claim is and the grounds upon which the complaint rests.95 However, two more recent decisions, Bell Atlantic Corp. v. Twombly96Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). and Ashcroft v. Iqbal,97 heightened the pleading requirements.98
In those cases, the Supreme Court explained that for a complaint to survive a Rule 12(b)(6) motion, it must state a plausible claim to relief, which requires alleging sufficient factual matter, accepted as true, to permit a court to draw a reasonable inference that the defendant is liable.99 The facts cannot merely be consistent with a defendant’s liability and must raise the plaintiff’s right to relief above a speculative level.100 This is not a probability requirement, but requires more than just the possibility that a defendant acted unlawfully.101 A complaint cannot simply contain mere legal conclusions or a recitation of the elements of a cause of action supported only by conclusory allegations.102 Unlike factual allegations, legal conclusions are not entitled to an assumption of truth.103 Through these decisions, the Supreme Court sought to prevent groundless claims from wasting resources and to expose deficient claims when it would be least expensive for the parties.104
In sum, only a complaint that pleads facts creating a plausible claim for relief can survive a motion to dismiss, and a plaintiff armed with nothing more than legal conclusions is not entitled to discovery.105 A claim that merely creates a possible claim for relief will not suffice and, without a plausible claim for relief, the complaint will be dismissed.106 This is known as the “plausibility pleading” standard.107 District courts have taken different approaches in interpreting the standard,108 and the standard’s effect on litigation has been the subject of much legal scholarship.109
A BitTorrent defendant may argue that the complaint failed to satisfy the plausibility pleading standard because it did not contain facts sufficient to state a plausible claim for relief from the named defendant.110 This argument relies on the use of IPAs to identify infringers.111 In a BitTorrent case, a plaintiff is entitled to relief only if the defendant participated in a copyright-infringing BitTorrent swarm and, under the plausibility pleading standard, the complaint must plead facts suggesting the defendant actually participated.112 However, BitTorrent defendants are found by identifying an IPA participating in a BitTorrent swarm and then inferring that, because an internet subscriber’s IPA was seen in the swarm, the subscriber himself participated.113 Therefore, since the complaint only contains facts suggesting that the defendant’s IPA participated in the swarm, but not that the defendant himself participated, the complaint should be dismissed.114
The BitTorrent plausibility pleading argument is persuasive because an IPA is associated with an internet connection, not a specific person or computer.115 If multiple people are using the same internet connection, any of those people could be the infringer and, with the advent of Wi-Fi,116 many people can wirelessly connect to one internet connection.117 Though it is possible that the named defendant is the infringer, the pleaded facts do not create a plausible claim that the named defendant is the infringer.118 Mere possibility does not satisfy the plausibility pleading standard.119 Therefore, the defendant may argue that, because the complaint does not state a plausible claim for relief, it should be dismissed for failure to state a claim.120
In sum, a BitTorrent complaint, simply alleging that a defendant’s IPA was identified in an infringing swarm, arguably does not state facts creating a plausible claim the plaintiff is entitled to relief from the alleged infringer.121
E. The BitTorrent Plausibility Pleading Argument Before Cobbler
Before Cobbler, district courts reached disparate conclusions when faced with the BitTorrent plausibility pleading argument.122 The argument was sometimes successful, as in Elf-Man, LLC v. Cariveau,123 where 152 defendants, identified through their IPAs, were accused of downloading the movie Elf-Man.124 The court granted the plaintiff’s early discovery motion, and four of the defendants filed a motion to dismiss.125 The District Court for the Western District of Washington granted the defendants’ motion, holding that, though it was possible that one or more of the named defendants downloaded Elf-Man, it also was possible that it was a third-party interloper.126 An IPA, by itself, was insufficient to implicate any particular person in copyright infringement.127
However, the BitTorrent plausibility pleading argument was often rejected.128 In Countryman Nevada, LLC v. Pitts,129 Pitts was accused of downloading the movie The Necessary Death of Charlie Countryman and was identified through her IPA.130 She filed a Rule 12(b)(6) motion, asserting the BitTorrent plausibility pleading argument.131 The District Court for the Middle District of Florida rejected the argument and aggregated cases from district courts for support.132 The Countryman court entertained the possibility that Pitts was not the downloader because identifying a BitTorrent defendant through an IPA can be unreliable.133 Nevertheless, the court distinguished Countryman from Elf-Man because the complaint directly alleged that Pitts herself was the downloader, which raised the identity of the infringer above a speculative level and allowed the court to draw the reasonable inference that Pitts was the infringer.134 The Countryman court had ample precedent to confidently reject the BitTorrent plausibility pleading argument.135
In 2018, the BitTorrent plausibility pleading argument was heard by the Ninth Circuit in Cobbler,136 which addressed the question of whether a complaint that merely alleges that a defendant is the subscriber of an IPA associated with copyright infringement, without additional facts connecting the defendant to the infringement, can survive a motion to dismiss.137
II. The Facts, Procedural History, and Holding of Cobbler
A. The Facts
On May 20, 2015, Cobbler Nevada, LLC (Cobbler), filed a complaint against a Doe defendant using the Doe’s IPA, alleging both direct and indirect copyright infringement of its movie, The Cobbler.138 Cobbler’s investigators observed Doe’s IPA distributing The Cobbler without permission139 using BitTorrent.140 Cobbler filed a motion to expedite discovery and subpoenaed Comcast, the ISP associated with the IPA, to identify the IPA’s subscriber.141 The motion was granted, and the Doe was identified as Thomas Gonzales,142 with the IPA being linked to the adult foster care home that he operated.143
Cobbler attempted, and initially failed, to contact Gonzales, and then filed a motion seeking leave to issue a Rule 45 subpoena to depose Gonzales, which was granted.144 Cobbler’s attorney eventually had the opportunity to speak with Gonzales over the phone and, from both the phone conversation and the deposition, learned that the home’s internet connection was accessible to residents and visitors at the home.145 Cobbler’s attorney concluded that Gonzales was unlikely to be the infringer,146 but Gonzales had refused to provide Cobbler with information about the adult care home’s residents, citing confidentiality concerns.147
B. The Procedural History
Despite Cobbler’s attorney acknowledging that Gonzales was unlikely to be the infringer,148 Cobbler filed its First Amended Complaint (FAC), naming Gonzales as the defendant.149 In the FAC, Cobbler alleged direct infringement—that Gonzales was the IPA subscriber, and that he copied and distributed The Cobbler through a BitTorrent network in violation of the plaintiff’s rights under the Copyright Act.150 Cobbler alternatively alleged that, if Gonzales did not download The Cobbler himself, Gonzales committed indirect infringement by failing to secure his internet connection, thereby permitting and facilitating the use of his internet subscription for infringement.151 Cobbler also alleged that Gonzales had been sent over 400 notices of the infringing activity but did not take any action to prevent it.152 Gonzales filed a Rule 12(b)(6) motion to dismiss the indirect infringement allegation.153
A magistrate judge for the District of Oregon154 recommended that the district court grant Gonzales’s motion to dismiss for the indirect infringement claim and dismiss Cobbler’s direct infringement claim sua sponte.155 The judge recommended dismissing the indirect infringement claim because Cobbler did not allege that Gonzales knowingly, or with willful disregard, facilitated and promoted others to use his internet connection to infringe on Cobbler’s copyright.156 The magistrate judge recommended dismissing the direct infringement claim because the only facts that supported Cobbler’s allegation were that Gonzales was the subscriber of the IPA used to distribute the movie and that he was sent notices about the infringing activity, to which he did not respond.157 The magistrate judge held that these facts alone were insufficient to survive a motion to dismiss; though it is possible that Gonzales was the infringer, it could have been another person, as Cobbler did not allege specific facts tying Gonzales to the infringement.158 The magistrate judge noted that discovery cannot be used to confirm a guess about the identity of the liable party.159 The district court adopted the magistrate judge’s recommendations, granting Gonzales’s motion to dismiss for indirect infringement with prejudice and direct infringement without prejudice.160
Cobbler filed a notice of voluntary dismissal for the FAC against Gonzales.161 Cobbler then filed a Second Amended Complaint (SAC) naming the Doe IPA as the defendant.162 Cobbler later filed a notice of voluntary dismissal for the SAC, and Gonzales filed a motion for an award of costs and attorney’s fees.163 The same magistrate judge then held that Cobbler’s claims were objectively unreasonable and recommended that the district court award Gonzales his court reporting fee and attorney’s fees,164 which the district court then awarded.165 Cobbler appealed the award of Gonzales’s costs and fees, together with the orders finding Gonzales a prevailing party and dismissing Cobbler’s claims.166
C. Holding
The Ninth Circuit affirmed the district court’s decision and issued a broad ruling: “In this copyright action, we consider whether a bare allegation that a defendant is the registered subscriber of an [IPA] associated with infringing activity is sufficient to state a claim for direct or contributory infringement. We conclude that it is not.”167
To succeed on a direct infringement claim, a plaintiff must allege something more than an IPA associated with the defendant’s internet subscription to create a reasonable inference that the defendant is the infringer, because multiple devices and individuals can connect to one IPA.168 Cobbler alleged that Gonzales was the subscriber of his IPA, but this allegation did not create the reasonable inference that Gonzales was the infringer.169 The court acknowledged that, though this holding will create a major obstacle for plaintiffs, it is nevertheless the plaintiff’s burden to create the reasonable inference.170 Cobbler pleaded facts consistent with Gonzales’s liability, but not facts that would plausibly entitle Cobbler to relief.171
The Ninth Circuit identified two strands of possible contributory infringement liability: (1) actively encouraging or inducing infringement through specific actions or (2) distributing a product incapable of substantial or commercially significant noninfringing uses that is then used for infringement.172 For the first strand, a plaintiff must allege that the defendant knew of the infringing activity and induced, encouraged, caused, or materially contributed to the infringement.173 Cobbler’s contributory infringement claim is based on its allegation that Gonzales failed to police his internet service, which does not meet this standard because Gonzales did not encourage, induce, cause, or materially contribute to the infringement, as Gonzales made no clear expression or took any affirmative steps to foster the infringement.174 For the second strand, the court explained that providing internet access is not distributing a product or service incapable of substantial or commercially significant non-infringing uses.175 Therefore, Gonzales could not be held liable for contributory infringement.176 The Ninth Circuit also refused to create an affirmative duty to police one’s internet connection for infringement.177
The Cobbler court also held that the district court did not abuse its discretion by awarding attorney’s fees.178 Under the Copyright Act, district courts may award reasonable attorney’s fees to a prevailing party for copyright infringement claims.179 Gonzales is a prevailing party because Cobbler’s contributory infringement claim was dismissed with prejudice.180 The Ninth Circuit uses a list of factors to consider in making a fee determination, known as the “Fogerty factors.”181 The district court focused on the unreasonableness of Cobbler’s litigating position, and reasoned that the fee award would act to deter Cobbler from over-aggressively pursuing alleged infringers without a reasonable basis.182 The Ninth Circuit upheld the fee determination.183
III. Analysis—Why The Cobbler Rule is Correct
The Cobbler court created a rule that heightens pleading requirements in BitTorrent cases, and the Ninth Circuit did not attempt to limit its holding to cases with analogous facts.184 District courts have subsequently interpreted the rule broadly, applying it to cases where the complaint merely alleges that a specific person is the subscriber of an IPA associated with infringing activity.185 The holding was simple: “[W]e consider whether a bare allegation that a defendant is the registered subscriber of an [IPA] associated with infringing activity is sufficient to state a claim for direct or contributory infringement. We conclude that it is not.”186 The Cobbler rule correctly interprets the plausibility pleading standard in the BitTorrent context and should be adopted by district courts throughout the United States.
A. Plausibility Pleading and Direct Infringement
In Cobbler, it was clear that Gonzales was unlikely to be the infringer, and the facts in the complaint did not create a plausible claim for direct infringement against Gonzales.187 Therefore, dismissing Cobbler’s direct infringement claim was appropriate. However, the facts in other cases may not be as favorable to the defendant. Therefore, to determine whether the Cobbler rule for direct infringement should be applied broadly, the plausibility pleading standard must be applied to the typical BitTorrent case.188
The difficulty in satisfying the plausibility pleading standard for a direct infringement claim is pleading facts that create a plausible claim that the subscriber himself was the infringer. At the pleadings stage of a BitTorrent lawsuit, a plaintiff may only have the IPA associated with infringing activity and the subscriber’s information.189 A plaintiff who claims direct copyright infringement must show that he owns a valid copyright and that the defendant violated the copyright owner’s rights under the Copyright Act.190
However, other than paying the internet bill, there is little connection between a subscriber and a specific instance of infringement associated with his IPA. An IPA does not identify an individual user; it is simply an electronic destination for internet traffic assigned by an ISP to a customer at a specific time.191 Though it may seem intuitive that the internet subscriber is likely to be the person using the internet connection at a given time, this intuition is flawed: many people may share an internet connection and, therefore, a single public IPA; wireless routers may not be secured and, if secured, the router passwords may be shared with numerous people; and unsecured guest accounts may be created and forgotten about, allowing guest access to anyone within range of the wireless router.192 Because numerous people on various network-capable devices may share a single public IPA, the subscriber of the IPA associated with infringement is just one of many people that may be responsible for a specific instance of infringement.
Identifying an infringer by using an IPA is analogous to assuming that the person listed on a house-phone bill made a specific phone call.193 Similar to how a house-phone number can be shared with multiple phones in a single household, a single internet connection can be shared with numerous devices.194 Therefore, it is no more likely that an internet subscriber is responsible for a specific use of his internet connection than a house-phone subscriber is for a specific phone call made from his number.195 In fact, it may be less likely because wireless networks are ubiquitous and, if a network is unsecured, it may be accessible to people outside the home.196
Another complicating factor is that BitTorrent was not designed to be used to reliably track IPAs.197 Internet users have the ability to mask their IPAs with other users’ IPAs198 and, as a result, a participant in a BitTorrent swarm can display another person’s IPA and an observer will be unaware.199 Furthermore, sites coordinating BitTorrent swarms may inject random IPAs into their swarm list results.200 Thus, an IPA that did not participate in a swarm may appear, and the internet subscriber associated with the IPA may be misidentified as an infringer and sued.
Despite the possibility that the subscriber may be the infringer, there are numerous alternative possibilities.201 Therefore, pleading that an IPA is associated with infringement does not state a plausible claim for direct infringement against the subscriber.202 Because of the numerous alternative possibilities, without pleading additional facts, the allegation that the subscriber is also the infringer is an unsubstantiated conclusion, and the complaint fails to state a plausible claim for relief from the subscriber himself.203
Thus, the Ninth Circuit was correct in establishing a rule limiting the grounds for pleading direct infringement, and the rule should be adopted by district courts throughout the country.
B. Plausibility Pleading and Contributory Infringement
If a plaintiff cannot succeed in a direct infringement claim, a contributory infringement claim is a useful alternative that does not require pleading that the subscriber-defendant is the infringer.204 In Cobbler, the Ninth Circuit affirmed the district court’s dismissal of Cobbler’s contributory infringement claim with prejudice because Gonzales’s failure to police his internet connection did not subject him to contributory infringement liability.205 In so doing, the Ninth Circuit established a rule that the bare allegation that the defendant is the subscriber of an IPA associated with infringing activity is insufficient to state a claim for contributory infringement.206
Contributory infringement is the tort law concept that one who directly contributes to another’s infringement should be held accountable.207 There are two types of contributory infringement liability: (1) actively encouraging or inducing direct infringement through specific acts, or (2) distributing a product incapable of substantial or commercially significant noninfringing uses that a third party uses to infringe.208 Contributory liability may attach when one knows of another’s infringing activity and actively induces, encourages, or materially contributes to the infringement.209 However, one is not subject to liability simply because he distributes a product capable of substantial noninfringing uses and another person uses the product to infringe, unless the distributor promoted the infringement.210 If one did not distribute the product with the object of promoting its use for copyright infringement, there is no duty to affirmatively prevent the infringement.211 If a person did not take any affirmative actions to foster infringement, mere knowledge of the infringing potential of a product does not subject him to contributory infringement liability.212
In the context of a BitTorrent lawsuit, the product being used for infringement is an internet connection. An IPA can identify an internet subscriber, but the distribution of the internet connection does not subject the subscriber to contributory infringement liability, even if the subscriber knows of the connection’s infringing potential; this is true because the internet has substantial and commercially significant noninfringing uses and was not distributed with the object of promoting copyright infringement.213 Therefore, to state a plausible claim for contributory infringement, a complaint must plead that the subscriber actively encouraged, induced, or materially contributed to another person’s direct infringement.214 Failing to reasonably police one’s internet connection fails to satisfy the plausibility pleading standard because the subscriber did not take affirmative steps to foster the infringement.215
Thus, the Ninth Circuit was correct in establishing a broad rule limiting the grounds for pleading contributory infringement in BitTorrent cases: the bare allegation that a defendant is the subscriber of an IPA associated with infringing activity is insufficient to state a claim for contributory infringement.216 A subscriber cannot be liable for another’s infringement using his internet connection without actively encouraging, inducing, or materially contributing to the infringement himself.217
C. How Cobbler May Result in Infringing Defendants Escaping Liability
This Comment argues that the Ninth Circuit correctly interpreted the plausibility pleading standard in a BitTorrent litigation context. However, one of Cobbler’s detriments is that it will likely result in some infringing defendants escaping liability, as a heightened pleading standard increases the chances of dismissal without formal discovery.218
In BitTorrent suits, the primary method of finding infringers is through IPAs and ISP subpoenas.219 After the subpoena, the plaintiff may only have the IPA associated with the infringement and the internet subscriber’s information.220 A plaintiff can use the formal discovery process to obtain information proving that the subscriber-defendant infringed its copyright, which cannot practically be obtained through other means.221 However, the Cobbler rule may preclude plaintiffs from reaching the discovery stage and obtaining the evidence necessary to prove infringement. For example, if a BitTorrent suit is dismissed before discovery, the plaintiff is precluded from deposing the defendant or obtaining his hard drive, both of which could prove infringement.222 This limitation may prove fatal to a BitTorrent lawsuit.
Therefore, Cobbler creates a substantial burden for plaintiffs by requiring them to plead “something more” than an IPA to connect the subscriber to the infringement.223 Because Cobbler is binding in the Ninth Circuit and has been accepted by district courts outside the circuit as well, its holding has had a major impact on BitTorrent litigation.224 Though the Cobbler rule correctly interprets the plausibility pleading standard and should be applied broadly, it undoubtedly increases a plaintiff’s burden and will likely result in some infringing defendants escaping liability.
IV. Cobbler’s Effect on Subsequent BitTorrent Lawsuits
The Cobbler rule has resulted in dismissal of complaints against identified defendants,225 but it has been less helpful for Doe defendants hoping to avoid identification altogether.226 This Part will explore how Cobbler has affected subsequent BitTorrent cases, both in the contexts of motions to dismiss and expedited discovery motions for ISP subpoenas.
A. Motions to Dismiss
Under the Cobbler rule, simply pleading that a defendant is the subscriber of an IPA associated with infringing activity is insufficient to survive a motion to dismiss for a copyright infringement claim.227 Courts that adopt the Cobbler rule require that a plaintiff allege “something more” to satisfy the plausibility pleading standard.228
The Cobbler rule has been adopted by district courts outside of the Ninth Circuit.229 For example, the District Court for the Northern District of Illinois adopted the Cobbler rule in Malibu Media, LLC v. Doe (Malibu I).230 There, the court held that Malibu Media’s infringement claim was insufficient because the only connection alleged between the defendant and the infringement was that the defendant was also the subscriber of the IPA associated with the infringement.231 The court noted that courts across the country are split as to whether such a complaint is sufficient to survive a motion to dismiss, but applied the Cobbler rule and granted the defendant’s motion to dismiss without prejudice.232
BitTorrent plaintiffs may survive motions to dismiss when pleading “something more” than just an internet subscriber and an IPA, such as the subscriber’s age, gender, education, employment, and details about the infringing activity that occurred on the subscriber’s internet connection.233 These additional facts about the subscriber might increase the likelihood that he is the infringer, creating a plausible claim for direct infringement.234 For example, in Malibu Media, LLC v. Doe (Malibu II),235 the plaintiff amended its complaint from Malibu I to include additional details tying the defendant to the infringement.236 The same district court judge from Malibu I refused to dismiss the amended complaint in Malibu II, holding that the additional allegations in the complaint set forth a plausible claim connecting the defendant to the infringement.237
After Cobbler, simply alleging a connection between an internet subscriber and infringement associated with his IPA is insufficient to state a claim for copyright infringement, but a complaint that pleads additional details connecting the subscriber to the infringement may survive a motion to dismiss.238 If a BitTorrent plaintiff can, without formal discovery, plead these additional facts, the complaint can survive a motion to dismiss.
Acceptance of the Cobbler rule has not been unanimous.239 For example, another judge in the Northern District of Illinois, Eastern Division, refused to adopt the Cobbler rule.240 In Malibu Media, LLC v. Palella, John Palella, a pro se defendant, moved to dismiss Malibu’s complaint because Malibu had done nothing more than simply identify him as the subscriber of an IPA associated with infringement, while others may have had access to his internet connection.241 The Palella court declined to follow Cobbler, explaining that the plaintiff’s burden at the pleadings stage of a lawsuit is minimal, and that the plaintiff had conducted a reasonable pre-suit investigation.242
Though the Palella court declined to follow the Cobbler rule, many district courts outside of the Ninth Circuit have adopted the rule. In jurisdictions that follow Cobbler, a BitTorrent plaintiff can survive motions to dismiss by furnishing more detailed factual allegations in their complaints.243
B. Expedited Discovery to Subpoena ISPs and Identify Defendants
The Cobbler rule has resulted in district courts dismissing complaints against identified defendants, but it has been less helpful for Doe defendants seeking to avoid identification.244 District courts often choose to limit Cobbler to cases where the defendant has already been identified and will not use Cobbler to deny expedited discovery motions to subpoena ISPs.245 However, Judge Schneider, a magistrate judge for the District Court for the District of New Jersey, Camden Vicinage, recently bucked this trend, though his dispositive opinion was reversed by District Court Judge Hillman.246
In Strike 3 Holdings, LLC v. Doe,247 Magistrate Judge Schneider denied an expedited discovery motion to subpoena the defendant’s ISP because, after the Doe defendant would be identified, the complaint would not survive a motion to dismiss.248 Judge Schneider explained that it would be anomalous to permitting a plaintiff to obtain discovery based on a futile complaint,249 acknowledging that Cobbler was the only circuit court decision that supported its holding, and that some decisions limit Cobbler to motions to dismiss.250 District Court Judge Hillman reversed this decision, and the plaintiff was permitted to subpoena the defendants’ ISPs.251
This Comment does not recommend applying the Cobbler rule to expedited discovery motions and disagrees with Magistrate Judge Schneider’s holding. Extending Cobbler to expedited discovery motions will lead to insurmountable information asymmetries.252 After Cobbler, to survive a motion to dismiss the plaintiff must plead additional facts, other than an IPA, connecting the subscriber to the infringement.253 If plaintiffs are denied expedited discovery, they will be unable to identify the subscriber and, subsequently, the opportunity to ever discover these additional facts. It is circular to argue that expedited discovery motions to identify the defendant should be denied because plaintiff’s complaint will fail, as the success of a complaint relies on identifying the subscriber and learning more information tying the defendant to the infringement.
District courts should not extend Cobbler to expedited discovery motions because it will result in BitTorrent plaintiffs being almost universally unable to vindicate their rights.
C. How Courts Should, and Should Not, Apply Cobbler
There is little doubt that Cobbler was correctly decided on its facts, and the court did not attempt to limit its holding to analogous cases.254 The Cobbler rule correctly interprets the plausibility pleading standard in a BitTorrent context, and district courts should apply the rule broadly,255 as it will protect innocent BitTorrent defendants from a costly and invasive discovery process, while allowing plausible claims to survive a motion to dismiss.256 However, a detrimental consequence of the rule is that it may help infringing defendants escape liability because plaintiffs may be unable to learn additional facts to support a plausible claim for infringement without formal discovery.
The Cobbler rule should not be applied to expedited discovery motions. Extending Cobbler to deny ISP subpoenas would deny BitTorrent plaintiffs the opportunity to identify Doe defendants.257 This would preclude plaintiffs from learning additional facts about the defendant that could connect him to the infringement, preventing copyright owners from surviving motions to dismiss altogether. Applying Cobbler to expedited discovery motions would permit even the most persistent pirates to infringe with impunity.
Conclusion
Cobbler was a landmark decision in the world of BitTorrent litigation,258 creating a rule correctly interpreting the plausibility pleading standard that has been accepted by district courts throughout the United States.259 This Comment recommends that all district courts adopt the Cobbler rule for motions to dismiss. This will ensure that BitTorrent cases with merit—those where the plaintiff can plead facts creating a plausible claim for direct infringement—can succeed, while ensuring that meritless cases are dismissed before discovery.