FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COBBLER NEVADA, LLC,

Plaintiff-Appellant,

v.

THOMAS GONZALES,

Defendant-Appellee.

No. 17-35041

D.C. No.

3:15-cv-00866-

SB

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted May 18, 2018

Portland, Oregon

Filed August 27, 2018

Before: M. Margaret McKeown and Richard A. Paez, 

Circuit Judges, and Robert S. Lasnik,* District Judge.

Opinion by Judge McKeown

 * The Honorable Robert S. Lasnik, United States District Judge for 

the Western District of Washington, sitting by designation.
2 COBBLER NEVADA V. GONZALES

SUMMARY**

Copyright

The panel affirmed the district court’s dismissal of an 

action under the Copyright Act, alleging direct and

contributory infringement of plaintiff’s copyrights in a film. 

Plaintiff alleged unauthorized downloading and 

distribution of the film through peer-to-peer BitTorrent 

networks. The panel held that the 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. The panel also held that the district court did 

not abuse its discretion in awarding attorney’s fees to the 

defendant under 17 U.S.C. § 505.

COUNSEL

John Mansfield (argued), Harris Bricken, Portland, Oregon; 

Carl D. Crowell, Crowell Law, Salem, Oregon; for PlaintiffAppellant.

David Hamlin Madden (argued), Mersenne Law, Tigard, 

Oregon, for Defendant-Appellee.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
COBBLER NEVADA V. GONZALES 3

OPINION

McKEOWN, Circuit Judge:

In this copyright action, we consider whether a bare 

allegation that a defendant is the registered subscriber of an 

Internet Protocol (“IP”) address associated with infringing 

activity is sufficient to state a claim for direct or contributory 

infringement. We conclude that it is not.

After tracing infringement of its copyrights to a 

particular IP address, Cobbler Nevada, LLC filed suit against 

the John Doe IP address for direct and contributory 

copyright infringement. Cobbler Nevada soon discovered 

that the IP address was registered to Thomas Gonzales, who 

operated an adult foster care home. Cobbler Nevada then 

amended its complaint to name Gonzales as the sole 

defendant, alleging that he directly infringed by copying and 

distributing copyrighted works himself or, in the alternative, 

contributed to another’s infringement by failing to secure his 

internet connection.

The district court properly dismissed Cobbler Nevada’s 

claims. The direct infringement claim fails because 

Gonzales’s status as the registered subscriber of an

infringing IP address, standing alone, does not create a 

reasonable inference that he is also the infringer. Because 

multiple devices and individuals may be able to connect via 

an IP address, simply identifying the IP subscriber solves 

only part of the puzzle. A plaintiff must allege something 

more to create a reasonable inference that a subscriber is also 

an infringer. Nor can Cobbler Nevada succeed on a 

contributory infringement theory because, without 

allegations of intentional encouragement or inducement of 

infringement, an individual’s failure to take affirmative steps 
4 COBBLER NEVADA V. GONZALES

to police his internet connection is insufficient to state a 

claim.

BACKGROUND

Cobbler Nevada holds copyrights in the film The 

Cobbler, a magic realism film that features “[a] cobbler, 

bored of his everyday life, [who] stumbles upon a magical 

heirloom that allows him to become other people . . . .” The 

Cobbler, IMDB, https://www.imdb.com/title/tt3203616/ 

(last visited July 26, 2018). Like a number of major motion 

pictures scheduled for theatrical release, The Cobbler has 

been the subject of unauthorized downloading and 

distribution (i.e., pirating) through BitTorrent networks. See 

generally Glacier Films (USA), Inc. v. Turchin, 896 F.3d 

1033, 1035–36 (9th Cir. 2018) (providing background on 

piracy via peer-to-peer BitTorrent networks). According to 

Cobbler Nevada, there have been over 10,000 instances of 

infringing activity of The Cobbler traced to Oregon alone.

Cobbler Nevada identified an IP address located in 

Portland, Oregon, that had downloaded and distributed The 

Cobbler multiple times without authorization. Cobbler 

Nevada filed suit against the unknown holder of the IP 

address—named in the complaint as Doe-24.21.136.125—

for direct and contributory copyright infringement. Records 

subpoenaed from Comcast identified Thomas Gonzales as 

the subscriber of the internet service associated with the IP 

address.

After several attempts to reach Gonzales, Cobbler 

Nevada’s counsel finally connected with Gonzales via 

telephone. Once counsel learned that the internet service 

was accessible to both residents and visitors at an adult care 

home, he concluded that “it does not appear that [Gonzales] 

is a regular occupant of the residence or the likely infringer.” 
COBBLER NEVADA V. GONZALES 5

Due to confidentiality concerns, Gonzales refused to share 

the names or work schedules of the individuals living and 

working in the home without a court order. Although the 

district court granted leave to depose Gonzales, the 

deposition revealed no new information regarding the 

identity of the actual infringer.1

Nevertheless, Cobbler Nevada filed a First Amended 

Complaint and named Gonzales as the sole defendant. 

Cobbler Nevada alleged that Gonzales “copied and 

distributed” The Cobbler or, in the alternative, “facilitated 

and promoted the use of the internet for the infringing of 

[Cobbler Nevada’s] exclusive rights under the Copyright 

Act” by failing to “reasonably secure, police and protect” the 

use of his internet service. Cobbler Nevada also claimed that 

Gonzales “ha[d] been sent over 400 notices of infringing 

activity,” yet “failed and refused to take any action 

whatsoever and either continued to infringe by using 

BitTorrent to download and distribute copyrighted content 

or continued to allow infringing activity after such notices.”

The only facts in support of Cobbler Nevada’s direct 

infringement claim were that Gonzales was “the subscriber 

of the IP address used to download or distribute the movie, 

and that he was sent notices of infringing activity to which 

he did not respond.” Relying on the magistrate judge’s 

reasoning that these allegations were “not enough” to state a 

claim because there were no facts connecting Gonzales to 

 1 During his deposition, Gonzales testified that, once he became 

aware of the infringing activity, he attempted to find out who the 

infringer was and instructed everyone to stop infringing. He also 

testified that the staff took the same steps, but no one was able to identify 

the infringer.
6 COBBLER NEVADA V. GONZALES

the infringing activity, the district court dismissed the direct 

infringement claim without prejudice.

The district court also dismissed the contributory 

infringement claim, which rested on the theory that Gonzales 

failed to stop infringement by others after being notified of 

such infringement. The court wrote that liability arises by 

“actively encouraging . . . infringement through specific 

acts,” and not by mere failure to take affirmative steps to 

prevent infringement. Cobbler Nevada’s failure to allege 

that Gonzales “promoted, encouraged, enticed, persuaded, 

or induced another to infringe any copyright, let alone 

[Cobbler Nevada’s] copyright,” sunk the claim.

The district court gave Cobbler Nevada three weeks to 

file an amended complaint. Instead of amending its claims 

against Gonzales, Cobbler Nevada filed a Second Amended 

Complaint in which, once again, it named the Doe IP address 

as the sole defendant. No new factual allegations were 

added. The magistrate judge ordered Cobbler Nevada to 

show cause why the Second Amended Complaint should not 

be dismissed for failure to cure the deficiencies identified in 

the court’s dismissal of the First Amended Complaint, or for 

failure to identify the unknown party in a timely manner 

pursuant to Federal Rule of Civil Procedure 4(m). Less than 

a week later, Cobbler Nevada filed a notice of voluntary 

dismissal.

Gonzales then filed a motion requesting entry of 

judgment dismissing the case and for attorney’s fees for the 

contributory infringement claim. The district court granted 

the motion and awarded Gonzales attorney’s fees of 

$17,222.40 and costs of $252.20.
COBBLER NEVADA V. GONZALES 7

ANALYSIS

I. The District Court Properly Dismissed Cobbler 

Nevada’s Direct Infringement Claim Without 

Prejudice 

Although copyright owners can often trace infringement 

of copyrighted material to an IP address, it is not always easy 

to pinpoint the particular individual or device engaged in the 

infringement. Internet providers, such as Comcast or 

AT&T, can go so far as to identify the individual who is 

registered to a particular IP address (i.e., an account holder) 

and the physical address associated with the account, but that 

connection does not mean that the internet subscriber is also 

the infringer. The reasons are obvious—simply establishing 

an account does not mean the subscriber is even accessing 

the internet, and multiple devices can access the internet 

under the same IP address. Identifying an infringer becomes 

even more difficult in instances like this one, where 

numerous people live in and visit a facility that uses the same 

internet service. While we recognize this obstacle to naming 

the correct defendant, this complication does not change the 

plaintiff’s burden to plead factual allegations that create a 

reasonable inference that the defendant is the infringer.

The only connection between Gonzales and the 

infringement was that he was the registered internet 

subscriber and that he was sent infringement notices. To 

establish a claim of copyright infringement, Cobbler Nevada 

“must show that [it] owns the copyright and that the 

defendant himself violated one or more of the plaintiff’s 

exclusive rights under the Copyright Act.” Ellison v. 

Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). Cobbler 

Nevada has not done so.
8 COBBLER NEVADA V. GONZALES

This is a situation “[w]here a complaint pleads facts that 

are merely consistent with a defendant’s liability, . . . 

stop[ping] short of the line between possibility and 

plausibility of entitlement to relief.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (internal quotation marks 

omitted). The allegations are not “enough to raise a right to 

relief above a speculative level.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 555 (2007). This result should come as no 

surprise to Cobbler Nevada, which acknowledged that its 

independent investigation did not permit identification of “a 

specific party that is likely to be the infringer.”

Nor did the district court err in entering judgment in 

favor of Gonzales after Cobbler Nevada voluntarily 

dismissed its Second Amended Complaint. Once the claims 

against Gonzales were dismissed, Cobbler Nevada failed to 

cure the deficiencies and instead amended its complaint to 

name the Doe IP address as the sole defendant. This put 

things right back where they started, naming an IP address 

without identifying an actual infringer. Recognizing that the 

claims against Gonzales were not resolved, the district court 

entered judgment reflecting its earlier dismissal of Cobbler 

Nevada’s direct infringement claim without prejudice and 

the contributory infringement claim with prejudice. Cobbler 

Nevada argues that the district court should have granted it 

further leave to amend before entering judgment, which had 

the effect of foreclosing any further amendment. See Weeks 

v. Bayer, 246 F.3d 1231, 1236–37 (9th Cir. 2001). In light 

of Cobbler Nevada’s prior amendments to the complaint and 

the futility of any further amendment, however, the district 

court acted within its discretion in not granting further leave 

to amend. See Salameh v. Tarsadia Hotel, 726 F.3d 1124, 

1133 (9th Cir. 2013); Lipton v. Pathogenesis Corp., 284 F.3d 

1027, 1039 (9th Cir. 2002).
COBBLER NEVADA V. GONZALES 9

II. The District Court Properly Dismissed Cobbler 

Nevada’s Contributory Infringement Claim With 

Prejudice

We have adopted the well-settled rule that “[o]ne 

infringes contributorily by intentionally inducing or 

encouraging direct infringement.” Perfect 10, Inc. v. 

Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir. 2007) 

(alteration in original) (quoting Metro-Goldwyn-Mayer 

Studios, Inc. v. Grokster, Ltd., 545 U.S. 914, 930 (2005)). 

Stated differently, “liability exists if the defendant engages 

in personal conduct that encourages or assists the 

infringement.” A&M Records, Inc. v. Napster, Inc., 

239 F.3d 1004, 1019 (9th Cir. 2001) (internal quotation 

marks omitted). A claim for contributory infringement 

requires allegations that the defendant is “one who, with 

knowledge of the infringing activity, induces, causes or 

materially contributes to the infringing conduct of another.” 

Fonovisa v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 

1996) (brackets omitted) (quoting Gershwin Publishing 

Corp. v. Columbia Artists Management, 443 F.2d 1159, 

1162 (2d Cir. 1971)). Cobbler Nevada’s contributory 

infringement claim is premised on a bare allegation that 

Gonzales failed to police his internet service. This 

perfunctory allegation, without more, does not sufficiently 

link Gonzales to the alleged infringement.

At the outset, we recognize that Gonzales’s position—a 

subscriber to internet service—does not fit cleanly within 

our typical contributory liability framework, which often 

involves consumer-facing internet platforms. See, e.g.,

Grokster, 545 U.S. at 919–20 (computer software provider); 

Amazon, 508 F.3d at 1171 (search engine). Nevertheless, it 

is no leap to apply the framework of similar technologybased cases to our analysis of Gonzales’s liability.
10 COBBLER NEVADA V. GONZALES

In Sony Corp. of America v. Universal City Studios, Inc., 

the Supreme Court held that liability for another’s 

infringement cannot arise from the mere distribution of a 

product that is “widely used for legitimate, [non-infringing] 

purposes.” 464 U.S. 417, 442 (1984). The Court later 

refined the standard for liability, holding that “one who 

distributes a device with the object of promoting its use to 

infringe copyright, as shown by clear expression or other 

affirmative steps taken to foster infringement, is liable for 

the resulting acts of infringement by third parties.” 

Grokster, 545 U.S. at 919. In essence, the limitation of 

liability in Sony—premised on a refusal to impute intent to a 

defendant based solely on knowledge that a product might 

be used for infringement—does not apply “where evidence 

. . . shows statements or actions directed to promoting 

infringement.” Id. at 935. The Court was clear, however, 

that “in the absence of other evidence of intent, a court would 

be unable to find contributory infringement liability merely 

based on a failure to take affirmative steps to prevent 

infringement, if the device otherwise was capable of 

substantial noninfringing uses.” Id. at 939 n.12; see also id. 

at 937 (“[M]ere knowledge of infringing potential or of 

actual infringing uses would not be enough here to subject a 

distributor to liability.”).

Although circuit courts approach contributory liability 

through varying lenses, our circuit has identified two strands 

of liability following Sony and Grokster: “actively 

encouraging (or inducing) infringement through specific 

acts” or “distributing a product distributees use to infringe 

copyrights, if the product is not capable of ‘substantial’ or 

‘commercially significant’ noninfringing uses.” Amazon, 

508 F.3d at 1170 (quoting Grokster, 545 U.S. at 942 

(Ginsburg, J., concurring)). We analyze contributory 

liability “in light of ‘rules of fault-based liability derived 
COBBLER NEVADA V. GONZALES 11

from the common law,’ and common law principles 

establish that intent may be imputed.” Id. at 1170–71 

(quoting Grokster, 545 U.S. 934–35).

Turning to the first strand, Cobbler Nevada’s complaint 

lacks any allegations that Gonzales “actively encourage[ed] 

(or induc[ed]) infringement through specific acts.” Id. at 

1170. Nothing in Cobbler Nevada’s complaint alleges, or 

even suggests, that Gonzales actively induced or materially 

contributed to the infringement through “purposeful, 

culpable expression and conduct.” Grokster, 545 U.S. at 

937. No allegations suggest that Gonzales made any “clear 

expression” or took “affirmative steps” to foster the 

infringement—Gonzales’s only action was his failure to 

“secure, police and protect” the connection. Id. at 919; see 

also 3 Nimmer on Copyright § 12.04 (“Inducement liability 

. . . rests [] on the defendant’s ‘active steps to encourage

infringement’ leading to actual infringement taking place.”) 

(quoting Grokster, 545 U.S. at 936). Because a “failure to 

take affirmative steps to prevent infringement” alone cannot 

trigger liability, Grokster, 545 U.S. at 939 n.12, Cobbler 

Nevada failed to “state a claim to relief that is plausible on 

its face,” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 

at 570).

Nor does the second strand implicate Gonzales. 

Providing internet access can hardly be said to be 

distributing a product or service that is not “capable of 

substantial” or “commercially significant noninfringing 

uses.” Sony, 464 U.S. at 442.

We note that Cobbler Nevada’s theory both strays from 

precedent and effectively creates an affirmative duty for 

private internet subscribers to actively monitor their internet 

service for infringement. Imposing such a duty would put at 

risk any purchaser of internet service who shares access with 
12 COBBLER NEVADA V. GONZALES

a family member or roommate, or who is not technologically 

savvy enough to secure the connection to block access by a 

frugal neighbor. This situation hardly seems to be one of 

“the circumstances in which it is just to hold one individual 

accountable for the actions of another.” Id. at 435.

III.The District Court Did Not Abuse its Discretion By 

Awarding Attorney’s Fees

The Copyright Act states that the district court “may . . . 

award a reasonable attorney’s fee to the prevailing party as 

part of the costs . . . .” 17 U.S.C. § 505. Gonzales is the 

“prevailing party” because Cobbler Nevada’s contributory 

infringement claim was dismissed with prejudice. See

Cadkin v. Loose, 569 F.3d 1142, 1150 (9th Cir. 2009) (“[A] 

defendant is a prevailing party following dismissal of a claim 

if the plaintiff is judicially precluded from refiling the claim 

against the defendant in federal court.”).2 In awarding fees 

to Gonzales, the district court acted within its discretion. See 

Entm’t Research 10 Grp. v. Genesis Creative Grp., 122 F.3d 

1211, 1216–17, 1228–29 (9th Cir. 1997).

The court “enjoys ‘wide latitude to award attorney’s fees 

based on the totality of circumstances in a case,’” though “its 

discretion must remain tethered to judicial guideposts.”

Glacier Films, 2018 WL 3542839, at *3 (quoting Kirtsaeng 

v. John Wiley & Sons, Inc., 136 S.Ct. 1979, 1985 (2016)). 

To guide the district court’s discretion, the Supreme Court 

and our court have provided a “nonexclusive” list of factors 

for courts to consider in making a fee determination. Id.; see 

also Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994); 

 2 Gonzales sought fees only for the contributory infringement claim.
COBBLER NEVADA V. GONZALES 13

Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 675 (9th 

Cir. 2017).

The district court properly applied the Supreme Court’s 

“Fogerty factors” to the particulars of this case. To begin, 

the court focused on the objective unreasonableness of the 

losing party’s litigating position, a factor that carries 

“substantial weight.” Kirtsaeng, 136 S. Ct. at 1983; Shame 

On You Prods., Inc. v. Banks, 893 F.3d 661, 666 (9th Cir. 

2018). Specifically, the court flagged as unreasonable 

Cobbler Nevada’s decision to name Gonzales as the 

defendant, even after concluding that Gonzales was not “a 

regular occupant of the residence or a likely infringer.” The 

court also considered deterrence: it 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. See Fogerty, 510 U.S. at 534 n.19. The 

court’s rationale is in keeping with the purposes of the 

Copyright Act. See Kirtsaeng, 136 S. Ct. at 1988–89 (a 

district court “may order fee-shifting . . . to deter . . . 

overaggressive assertions of copyright claims”).

On the whole, the district court “consider[ed] the facts of 

[this] case, weigh[ed] the appropriate factors, and ma[de] a 

fee determination based on the conduct of both parties.” 
14 COBBLER NEVADA V. GONZALES

Glacier Films, 2018 WL 3542839, at *9.3 We thus uphold 

the fee determination.4

AFFIRMED.

 3 In Glacier Films, we reversed and remanded a fees ruling because 

the district court had based its decision “on a one-size-fits-all disapproval 

of other BitTorrent suits,” not on the facts of the case at hand. 2018 WL 

3542839, at *1, *9. By contrast, the district court trained its focus here 

on the unreasonable conduct of Cobbler Nevada in this particular case.

4 To the extent Cobbler Nevada claims that the district court had no 

jurisdiction to award attorney’s fees after the voluntary dismissal, we 

reject that argument for the simple reason that Gonzales was not a party 

to the voluntary dismissal. Wilson v. City of San Jose, 111 F.3d 688, 692 

(9th Cir. 1997) (“The filing of a notice of voluntary dismissal with the 

court automatically terminates the action as to the defendants who are 

the subjects of the notice.” (emphasis added)). At the time of the 

voluntary dismissal, the only defendant named in the Second Amended 

Complaint was the Doe IP address, not Gonzales.