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Voltage Pictures, LLC v. Revitch

United States District Court, D. Oregon

January 23, 2015

VOLTAGE PICTURES, LLC, a California Limited Liability Company; and TCYK, LLC, a California Limited Liability Company, Plaintiffs,
v.
HAIG REVITCH, Defendant.

ORDER

ANN AIKEN, District Judge.

Plaintiffs bring this action asserting copyright infringement. Plaintiffs allege that defendant copied and published plaintiffs' motion picture, The Company You Keep, via a bittorent client. Plaintiffs initiated this case against a Doe defendant identified as conducting the allegedly infringing activity through the internet protocol (IP) address 67.170.161.21. After securing an ex parte subpoena to obtain subscriber information from the internet service provider (ISP) Comcast, plaintiffs allege defendant Haig Revitch (the subscriber) is responsible for the allegedly infringing activity:

17. The defendant Haig Revitch is the party identified by Internet Service Provider (ISP) Comcast as being assigned use of Internet Protocol ("IP") Address 67.170.161.21 which on February 10, 2014, at 2:27:37 AM UTC, was observed infringing the motion picture.
....
19. The defendant's IP address has been associated with significant infringing activity with hundreds of titles exchanged on peer-to-peer networks associated with this IP address.
20. The volume and titles of the activity associated with defendant's IP address, some of which is listed in Exhibit 1, indicates that the defendant is either the actual infringer or provides access to the Internet to someone who resides with the defendant, as such activity indicates the infringer is an authorized user of the IP address with stable and consistent access.
21. The volume of the activity associated with defendant's IP address, some of which is listed in Exhibit 1, indicates that anyone using or observing activity on the IP address would be aware of the conduct of the infringer.
22. The volume and titles of the activity associated with defendant's IP address, some of which is listed in Exhibit 1, indicates that the infringer is not a child, but an adult with mature tastes.
23. The defendant's IP address was at that time of observed infringement managed by Internet Service Provider ("ISP") Comcast, who on information and belief, generally assigns an IP address to a single party for extended periods of time, often for months.
24. On information and belief, the defendant either continued to participate in the infringement of plaintiffs' rights and others after notice of this suit, or allowed the infringer to use his IP address to infringe plaintiffs' rights and others after notice of this suit. As such, the defendant's direct or contributory acts of willful infringement continued even after express notice of this suit.
....
46. Based on the volume, type and persistence of the activity associated with IP address 67.170.161.21, it is believed the defendant is the actual subscriber and infringer who contracted with ISP Comcast, or knowingly permitted the acting infringer to operate through their IP address.
47. Based on the observed BitTorrent activity that continued after express notice of this suit, it is believed the defendant either willfully continued to commit infringement of plaintiffs' rights and others after notice of suit, or willfully facilitated acts of infringement by others after notice of suit.

First Amended Complaint (#12) at ΒΆΒΆ 17, 19-24, 46-47.

The court has taken issue with the tactics of plaintiff Voltage pictures in the past, such as using the court's subpoena power to extract information from ISP's regarding hundreds of subscribers via the filing of a single case, to apparently reap quick and easy settlements. The court has addressed these concerns by requiring plaintiff to file separate cases against each alleged violator. This requirement adds hundreds of thousands of dollars in filing fees and substantially increases plaintiff's incentive to pursue only cases it intends to actually litigate.

However, defendant in this case views the manner in which plaintiffs have pursued these cases as much more nefarious. Accordingly, defendant brings two of his own counterclaims for copyright misuse and unfair business practice. He alleges that he did not download the movie and that plaintiffs have no evidence that he did. The claims then turn to the IP address which forms the crux of his claim, i.e., that plaintiffs misrepresented that an IP address is a person. The claims appear to be denials of liability or affirmative defenses disguised as counterclaims and a challenge to the manner in which plaintiffs ...


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