IP Law Daily, COPYRIGHT—8th Cir.: Voluntary dismissal of BitTorrent infringement case did not warrant attorney fee award, (Dec 7, 2015)

By Mark Engstrom, J.D.

A federal district court did not err in denying attorney fees to an individual defendant who was sued for copyright infringement because her Internet Protocol (IP) address had allegedly downloaded an unauthorized copy of the 2012 motion picture Killer Joe, the U.S. Court of Appeals in St. Louis has ruled (Killer Joe Nevada, LLC v. Leaverton, December 3, 2015, Benton, W.). Because the district court did not abuse its discretion in denying the defendant’s motion for attorney fees, the judgment of the district court was affirmed.

Killer Joe Nevada owned the copyrights to the 2012 motion picture Killer Joe. After learning that several IP addresses had downloaded unauthorized copies of the film, the plaintiff sued multiple defendants as Doe parties. It also subpoenaed the relevant Internet Service Providers (ISPs) to identify the subscriber(s) to each IP address. After Leaverton was identified, Killer Joe Nevada amended its complaint to identify her as a defendant. Leaverton answered, denied the allegations, and counterclaimed for a declaratory judgment of non-infringement.

Thereafter, Killer Joe Nevada sought a voluntarily dismissal of its lawsuit. Leaverton objected to the dismissal absent a grant of attorney fees. The district court dismissed the suit, dismissed Leaverton’s counterclaim as moot, and denied Leaverton’s requests for attorney’s fees. Leaverton appealed.

Leaverton argued that the district court had abused its discretion in several ways. First, she argued that the district court had erroneously ruled that the plaintiff’s decision to sue the IP address subscriber—without first investigating whether the subscriber was responsible for the alleged infringement—was reasonable and not frivolous. Although the circuit court did not reach that precise question, it did note that a plaintiff such as Killer Joe Nevada “may” properly sue a John Doe defendant to ascertain the ISP subscriber.

Leaverton also argued that the district court had abused its discretion by determining that Killer Joe Nevada did not have improper motives for bringing its lawsuit. More specifically, Leaverton argued that the district court should not have found that the plaintiff’s motives for suing the IP subscriber were proper simply because the plaintiff had promptly dismissed its lawsuit when it learned that Leaverton was not the infringer. The circuit court disagreed. The district court’s finding that Killer Joe Nevada lacked an improper motive was not, in the circuit court’s view, an abuse of discretion.

Leaverton further argued that the district court had abused its discretion by failing to consider her financial status. She cited no authority, however, for the assertion that a party’s financial status should affect the court’s determination regarding attorney fees under 17 U.S.C. §505. According to the circuit court, the district court’s failure to expressly consider her financial status was not an abuse of expression.

All other challenges to the district court’s denial of attorney fees were similarly rejected. Consequently, the district court had not abused its discretion in denying Leaverton’s request for attorney fees.

The case is No. 14-3274.

Attorneys: Charles Aaron Damschen (Hamilton IP Law Firm) for Killer Joe Nevada, LLC. Raymond Johnson (Johnson Law Firm) for Does 1-20 and Leigh Leaverton.

Companies: Killer Joe Nevada, LLC

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