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PORTLAND – In a decision issued late last month, the U.S. Court of Appeals for the Ninth Circuit upheld a lower court’s ruling which held that a “bare allegation that the defendant was the registered subscriber of an Internet Protocol address associated with infringing activity was insufficient to state a claim for direct or contributory infringement.”

While the case involved a mainstream film company, Cobbler Nevada, the core issues at hand often arise in copyright infringement lawsuits filed against internet users who illegally download adult entertainment videos through BitTorrent networks.

In the case reviewed by the 9th Circuit, Cobbler Nevada v. Gonzales, the process of arriving at suing the defendant is one which will sound very familiar to those who have followed similar cases involving adult entertainment studios as plaintiffs.

As the court summarized the facts of the case, after Cobbler Nevada traced infringement of its copyrights to a specific IP address, the company filed suit against the John Doe IP address for direct and contributory copyright infringement.

Writing for the three-judge appellate panel, Judge M. Margaret McKeown found that the district court “properly dismissed Cobbler Nevada’s claims.”

The panel also found that Cobbler’s contributory copyright infringement claim lacked foundation, because “without allegations of intentional encouragement or inducement of infringement, an individual’s failure to take affirmative steps to police his internet connection is insufficient to state a claim.”

Finally, the appellate panel also found the district court “did not abuse its discretion” in awarding Gonzales attorney’s fees after dismissing Cobbler’s claims.

In an observation on which adult studios filing similar cases might be wise to reflect, McKeown observed the district court “also considered deterrence” in awarding attorney’s fees and costs to Gonzales.

“(The district court) reasoned that awarding fees would deter Cobbler Nevada from an ‘overaggressive pursuit of alleged infringers without a reasonable factual basis’ while encouraging defendants with valid defenses to defend their rights,” McKeown wrote.


Gene Zorkin has been covering legal and political issues for various adult publications (and under a variety of different pen names) since 2002.