IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

COBBLER NEVADA, LLC, Case No. 3:15-cv-01550-SB

 

Plaintiff, OPINION AND

 ORDER

v.

ANONYMOUS USERS OF POPCORN 

TIME: DOES 1-11, 

Defendants.

 

BECKERMAN, Magistrate Judge.

Plaintiff Cobbler Nevada, LLC (“Plaintiff”),filed this action against eleven anonymous users

of Popcorn Time software, alleging a claim for copyright infringement under the Copyright Act, 17

U.S.C. §§ 101 et seq. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and

1338. For the reasons that follow, the Court grants Plaintiff’s Bill of Costs (ECF No. 53), and denies

Plaintiff’s motion for attorney fees (ECF No. 51).

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BACKGROUND

Since 2014, Plaintiff’s counsel has filed approximately300 cases in the United States District

Court for the District of Oregon, alleging that Doe defendants, initially identified only by their

Internet Protocol(“IP”) addresses, violated the Copyright Act bydownloadingmovies on the Internet

using the “BitTorrent” protocol.1 BitTorrent is a peer-to-peer file sharing protocol used to distribute

data over the Internet. 

In most of these BitTorrent copyright cases, the plaintiff is an out-of-state limited liability

company (“LLC”), that owns the copyright for the movie for which the LLC is named. For example,

in this case, Cobbler Nevada LLC is a Nevada LLC that owns the copyright for the 2015 movie, The

Cobbler, starring Adam Sandler. (Compl. ¶¶ 4, 6, ECF 1.) A Pacer search indicates that Cobbler

Nevada LLC has now filed 67 cases alleging copyright infringement in the District of Oregon, in

addition to at least 165 cases in other districts.

On August 16, 2015, Plaintiff filed its complaint in this case, naming eleven anonymous

users of Popcorn Time software as Doe defendants, identified only by their IP address, and alleging

that each defendant violated the Copyright Act by downloading The Cobbler using Popcorn Time

software. Popcorn Time is a software program that facilitates the exchange of movies over the

Internet, using the BitTorrent peer-to-peer file sharing protocol. According to Plaintiff, “Popcorn

Time promotes itself and is distributed in a manner that invites the most causal of Internet users to

1 Early cases filed by Plaintiff’s counsel joined many defendants in a single complaint. See,

e.g., Voltage Pictures, LLC v. Does 1-371, No. 3:13-cv-00295-AA (filed Feb. 19, 2013) (naming 371

Doe defendants). This district has since prohibited swarm joinder in BitTorrent copyright litigation.

See Standing Order 2016-8.

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enter the world of online theft and piracy with its ease of use and friendly logos.” (Mot. to Expedite

3 (ECF No. 6 ).)

Soon after filing its complaint, Plaintiff filed a motion for ex parte discovery, in an attempt

to ascertain the identity of the Doe defendants. (ECF 6.) Specifically, Plaintiff asked the Court for

permission to subpoena records from Internet Service Provider Comcast, to identify the subscriber

of each IP address. (ECF 6.) The Court granted plaintiff’s motion. (ECF 7.)

Over the next two months, Plaintiff filed joint motions with Doe Defendants No. 4, 5, 8, 9,

and 10, to approve consent judgments, and the Court approved and entered those consent judgments.

Each consent judgment referenced a separate settlement agreement Plaintiff had reached with the

Doe defendant, but did not reveal the terms of the settlement agreements. Two of the defendants who

agreed to consent judgments were not represented by counsel. See, e.g., ECF No. 15 (Doe No. 8),

ECF No. 24 (Doe No. 4).2 Plaintiff moved to dismiss Doe Defendants 2 and 11. 

As to the Doe defendants who did not settle immediately ( Does 1, 3, 6, and 7), Plaintiff filed

a motion requesting that the Court authorize a Fed. R. Civ. P. (“Rule”) 45 deposition of each IP

address subscriber. (ECF 32.) The Court granted Plaintiff’s motion. (ECF 33.) Plaintiff later

dismissed Doe Defendants 3, 6, and 7, noting that Plaintiff was unable to identify a likely defendant

with sufficient particularity to permit Plaintiff to proceed. (ECF Nos. 35-37.)

Doe No. 1 (the only remaining defendant, and referred to herein as “Defendant”) declined

to answer Plaintiff’s questions at the Rule 45 deposition, or produce any documents responsive to

2

 The district has since established a panel of lawyers who volunteer to provide up to three

hours of pro bono legal advice to subscribers and defendants in these actions. See Standing Order

2016-7.

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the Rule 45 subpoena, asserting his rights under the self-incrimination clause of the Oregon

Constitution and the Fifth Amendment of the United States Constitution. (ECF 44.) Nevertheless,

Doe No. 1 agreed to a stipulated consent judgment, which this Court entered on February 17, 2016.

(ECF 50.)

In the consent judgment, the parties agreed to an award of statutory damages in the

(mandatory minimum) amount of $750, and also agreed that the Court should award “reasonable

costs and fees” under 17 U.S.C. § 505 and Rule 54. (ECF 50 at 2.) On February 28, 2016, Plaintiff

filed its fee application, seeking $4,706.60 in fees, and $190.20 in costs. (ECF 51, 53.) Defendant

responded to the motion, asking the Court to reduce or deny the requested fee award, in part, because

to award attorney fees in this case would result in the “court . . . enforc[ing] [Plaintiff’s] legal

extortion of Defendant (and other similarly situated persons).” (ECF 54 at 7.)

DISCUSSION

A. Plaintiff’s Bill of Costs

Plaintiff seeks a $190.20 cost award, including the $70 it incurred to subpoena Comcast, $45

to reimburse Defendant for appearing at the Rule 45 deposition, and $75.20 for the deposition

transcript. Defendant does not oppose the request. The Court has reviewed Plaintiff’s cost bill and

finds that the requested costs are appropriate to award. See 28 U.S.C. § 1920 (authorizing taxation

of costs).

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B. Plaintiff’s Motion for Attorney Fees

1. Attorney Fee Awards in Copyright Cases are Discretionary.

The Copyright Act provides, in relevant part:

In any civil action under this title, a court in its discretion may allow the recovery of

full costs by or against any party other than the United States or an officer thereof.

Except as otherwise provided by this title, the court may also award a reasonable

attorney’s fee to the prevailing party as part of the costs.

17 U.S.C. § 505 (emphasis added). The Supreme Court has held that a district court may exercise

its discretion to grant, or deny, attorney fees to a prevailing party in a copyright case. See Fogerty

v. Fantasy, Inc., 510 U.S. 517, 534 (1994) (“[A]ttorney’s fees are to be awarded to prevailing parties

only as a matter of the court’s discretion.”); see also McCulloch v. Albert E. Price, Inc., 823 F.2d

316, 323 (9th Cir. 1987) (“[W]e do not believe Congress intended that the prevailing plaintiff should

be awarded attorney’s fees in every case.”); Columbia Pictures Television, Inc. v. Krypton Broad.

of Birmingham, Inc., 259 F.3d 1186, 1197 (9th Cir. 2001) (affirming denial of plaintiff’s motion for

attorney fees); Buck v. Bilkie, 63 F.2d 447, 447 (9th Cir. 1933) (same). Indeed, the Supreme Court

recently reiterated, in a unanimous decision, that “§ 505 grants courts wide latitude to award

attorney’s fees based on a totality of circumstances in a case.” Kirtsaeng v. John Wiley &Sons, Inc.,

— U.S. —, 136 S. Ct. 1979, 1985 (2016). The Supreme Court emphasized that “§ 505 confers broad

discretion on district courts and, in deciding whether to fee-shift, theymust take into account a range

of considerations beyond the reasonableness oflitigating positions[.]”Kirtsaeng, 136 S. Ct. at 1988.

The Supreme Court has identified “several nonexclusive factors to guide courts’ discretion,”

including “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal

components of the case) and the need in particular circumstances to advance considerations of

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compensation and deterrence.” Fogerty, 510 U.S. at 534 n.19 (citation and quotation marks omitted);

see also Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946, 957 (9th Cir. 2012) (affirming denial

of motion for attorneyfees in copyright case, and noting that district courts should consider, “‘among

other things: the degree of success obtained on the claim; frivolousness; motivation; objective

reasonableness of factual and legal arguments; and need for compensation and deterrence’”) (citation

omitted), rev’d on other grounds, — U.S. —, 134 S. Ct. 1962 (2014). In Kirtsaeng, the Supreme

Court noted that a court may also consider the need to “deter . . . overaggressive assertions of

copyright claims[.]” 136 S. Ct. at 1989. 

The Ninth Circuit has held that “[t]he most important factor in determining whether to award

fees under the Copyright Act, is whether an award will further the purposes of the Act,” Mattel, Inc.

v. MGA Entm’t, 705 F.3d 1108, 1111 (9th Cir. 2013), and that the primary purpose of the Copyright

Act is to “encourage the production of original literary, artistic, and musical expression for the good

of the public.” SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1280 (9th Cir. 2013). See

also Fogerty, 510 U.S. at 527 (“[C]opyright law ultimately serves the purpose of enriching the

general public through access to creative works[.]”).

Recently, another court in this district denied a motion for attorney fees in a similar

BitTorrent copyright case, in part because “[l]itigation conduct that needlesslyincreases the expense

of resolving copyright disputes neither encourages innovation nor appropriately rewards an author’s

creation.” See Countryman Nevada, LLC v. Doe-73.164.181.226, — F. Supp. 3d —, No. 3:15-cv433-SI, 2016 WL 3437598, at *8 (D. Or. June 17, 2016) (“[U]nder the totality of the circumstances

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presented, the Court exercises its discretion to denyPlaintiff anyattorney’s fees, notwithstanding the

fact that Plaintiff has prevailed on the merits of its copyright claim.”).

2. The Court’s Discretion Applied.

In light of the totality of circumstances, the Court concludes that fee shifting is inappropriate

in this case.

While a copyright holder’s action against an individual BitTorrent copyright infringer is not

frivolous under the Copyright Act, the degree of success in each of these BitTorrent copyright cases

is minimal, in two respects. First, the $750 statutory damage award Defendant has agreed to pay is

low in relation to the amount of attorneyfees Plaintiff has accrued ($4,706.60), to achieve that result.

See Milton H. Greene Archives, Inc. v. Julien’s Auction House LLC, 345 F. App’x 244, 249 (9th Cir.

2009) (noting that limited success, such as nominal damages, may support the denial of an attorney

fee award, and observing that “an award of attorneys’ fees that is ten times the amount recovered in

damages seems unreasonable under the circumstances”). Second, Plaintiff acknowledges that its

movie, The Cobbler, has been illegally downloaded over 10,000 times in Oregon alone. (Compl. ¶

11.) Although this case resulted in an injunction against one infringer, that result is de minimis in

relation to the serious online piracy problem Plaintiff seeks to combat. On balance, the degree of

success Plaintiff has achieved as the prevailing party in this litigation does not warrant requiring

Defendant to fund in toto Plaintiff’s enforcement of its copyright.

In addition to the degree of success obtained, the court may also consider the need for

deterrence as a relevant factor in making a fee award determination. Fogerty, 510 U.S. at 534 n.19.

For downloading a single movie, the Court is already requiring Defendant to pay $750 in statutory

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damages, as well as $190.20 to reimburse Plaintiff for its costs, for a total financial penalty of almost

$1,000. As this Court has noted in other cases, a financial penalty of that magnitude is sufficient to

deter Defendant, as well as others, from illegallydownloadingmovies in the future. See, e.g., Glacier

Films (USA), Inc. v. Gallatin, No. 3:15–cv–01632–SB, 2016 WL 3148401, at *3 (D. Or. May 12,

2016) (“[C]ommon sense supports a conclusion that a $750 financial penaltyfor illegal downloading

one movie is more than sufficiently punitive to deter others from illegally downloading free movies

on the BitTorrent network. With knowledge that it will now cost $750 to watch a single movie on

the BitTorrent network, consumers should be motivated instead to spend a few dollars to rent the

same movie legally.”). In light of the substantial damage award already imposed, an attorney fee

award is not necessary to deter further infringement, nor is a fee award necessary to encourage

Plaintiff to continue to protect its rights, where Plaintiff has been vigilant to date and clearly has the

resources to police its copyright. See Grateful Dead Prod. v. Come ‘N’ Get It, No. 88 CIV. 4471

(MEL), 1994 WL116052, at *1 (S.D.N.Y. Mar. 25, 1994) (denying prevailing plaintiffs’ application

for attorneyfees, noting that “substantial damages have alreadybeen assessed against the defendants

[a small retail store and its owner]” and an award is not “required to encourage the plaintiffs to

protect their rights” where “[t]hey have been understandably vigilant in that cause and have the

resources to police their copyrights”); cf. Fogerty, 510 U.S. at 1028 (rejecting comparison of fee

shifting under the Civil Rights Act involving impecunious plaintiffs to fee shifting under the

Copyright Act, because “‘[e]ntities which sue for copyright infringement as plaintiffs can run the

gamut from corporate behemoths to starving artists; the same is true of prospective copyright

infringement defendants’”) (citation omitted).

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The Supreme Court and the Ninth Circuit have also recognized that a district court should

award attorney fees only if doing so will further the purposes of the Copyright Act. In these

BitTorrent copyright cases, the threat of fee-shifting has emboldened Plaintiff’s counsel to demand

thousands of dollars to settle a claim, even where the infringing defendant admits early in the case

that they illegally downloaded the movie. See, e.g., Countryman Nevada, LLC, 2016 WL 3437598,

at *2 (noting that plaintiff demanded $8,500 to settle the case after the defendant acknowledged

liability early in the case); Cobbler Nevada, LLC v. Reardon, No. 3:15-cv-01077-ST, 2015 WL

9239773, at *2 (D. Or. Dec. 16, 2015) (noting that unrepresented defendant agreed to consent

judgment in the amount of $8,500); see also Malibu Media, LLC v. Doe IP Address 66.108.67.10,

No. 15 Civ. 4369 (AKH), 2015 WL 4092417, at *2 (S.D.N.Y. July 6, 2015) (“Recent empirical

studies show that the field of copyright litigation is increasingly being overtaken by ‘copyright

trolls,’ roughly defined as plaintiffs who are ‘more focused on the business of litigation than on

selling a product or service or licensing their [copyrights] to third parties to sell a product or service.

The paradigmatic troll plays a numbers game in which it targets hundreds or thousands of

defendants, seeking quick settlements priced just low enough that it is less expensive for the

defendant to pay the troll rather than defend the claim.’”) (citation omitted). In several of these

BitTorrent copyright cases, defendants have agreed to paythe plaintiff’ssettlement demands without

the benefit of counsel, see, e.g., Reardon, 2015 WL 9239773, at *2, and in almost every case, the

settlement agreements are confidential and not subject to court approval.3

3

In some cases, Plaintiff has pursued particularly vulnerable individuals. See, e.g., Cobbler

Nevada, LLC v. Gonzales, No. 3:15-cv–00866-SB (targeting an adult group foster care home);

Cobbler Nevada, LLC v. Snapp, No. 3:15-cv-01768-SB(targeting a woman living on Social Security

disability benefits).

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The Copyright Act, as it is being enforced in these BitTorrent cases, has created results

inconsistent with the goals of the Act. When an individual who has illegally downloaded a movie

is contacted by Plaintiff’s counsel, and faces the threat of a statutory damage award that could

theoretically reach $150,000 (see 17 U.S.C. § 504(c)(2)), as well as the threat of a substantial

attorney fee award, the resulting bargaining process is unequal, and unfair. For this Court to award

Plaintiff its attorneyfees in this case would only contribute to the continued overaggressive assertion

and negotiation of these Copyright Act claims. See Kirtsaeng, 136 S. Ct. at 1989 (noting that a court

should consider the need to “deter . . . overaggressive assertions of copyright claims”). As another

court recently noted in a similar BitTorrent case, a federal court should make its tools available only

with careful scrutiny, to avoid the potential for abuse:

There is no doubt that online piracy of digital media is a major problem today.

Ordinarily, the ‘federal court system provides litigants with some of the finest tools

available to assist in resolving disputes.’ Those tools can empower copyright-owners

to enforce their rights, but they are also capable of being used as instruments of abuse.

Where abuse is likely, as it is here, courts should not make those tools available

without careful scrutiny.

Malibu Media, LLC, 2015 WL 4092417, at *6 (citation omitted). This Court has already provided

many of its tools to facilitate Plaintiff’s enforcement of its copyright, including allowing ex parte

discovery to identify the alleged infringers. However, exercising the Court’s discretion to require

Defendant to pay thousands of dollars in attorney fees, for illegally downloading a single movie,

would render an inequitable outcome that is inconsistent with the policies served by the Copyright

Act. See Fogerty, 510 U.S. at 524 (“[T]he policies served by the Copyright Act are more complex,

more measured, than simply maximizing the number of meritorious suits for copyright

infringement.”); Warner Bros Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1127 (2d Cir. 1989) (“In

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the district court’s discretion, fees need not be awarded if the award would not vindicate underlying

statutory policies or it would be inequitable.”) (citations omitted). 

For these reasons, under the totality of the circumstances presented, the Court exercises its

discretion to deny Plaintiff’s motion for attorney fees.

CONCLUSION

For the reasons stated, Plaintiff’s motion for attorney fees (ECF No. 51) is DENIED, and

Plaintiff’s Bill of Costs (ECF No.53) is GRANTED. Costs are awarded in the amount of $190.20. 

IT IS SO ORDERED.

DATED this 10th day of August, 2016.

____________________________ 

 STACIE F. BECKERMAN

United States Magistrate Judge

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