On August 10, 2016, Magistrate Judge Beckerman denied a prevailing plaintiff’s motion for attorney fees in a copyright infringement suit against an unnamed defendant for illegally downloading an Adam Sandler movie (The Cobbler) using the BitTorrent peer-to-peer file sharing protocol. Among the reasons given for denying plaintiff’s motion for attorney fees was the Court’s finding that these types of BitTorrent cases often unfairly punish the defendant for one bad act and do not further the purposes of the Copyright Act.

“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 attorney fees in this case would only contribute to the continued overaggressive assertion and negotiation of these Copyright Act claims.”

In this case, the plaintiff (Cobbler Nevada, LLC) sued eleven anonymous users of “Popcorn Time” software. Most settled quickly. Of the four Doe defendants that did not settle quickly, three were dismissed because the plaintiff could not identify a likely defendant with sufficient particularity. Eventually, the sole remaining defendant agreed to a stipulated consent judgment which awarded the statutory minimum amount of damages ($750) and agreed that the court should award “reasonable costs and fees.” The Court awarded costs of about $200, but declined to award any of the $4,700 in requested attorney fees.

In addition to lamenting the “overaggressive assertion and negotiation” of these BitTorrent cases, the Court also questioned the degree of success obtained by the plaintiff and the deterrent value of awarding attorney fees, both factors in determining whether fee shifting is appropriate for any given case. As to the success of the plaintiff in this litigation, the Court noted that the plaintiff accrued over $4,700 in attorney fees to obtain only $750 in damages. And as to deterrence, the Court felt that payment of almost $1,000 ($750 in damages plus costs of about $200) was sufficiently high a price to pay to watch a single movie and that others would be encouraged to “pay a few dollars to rent the same movie legally.”

This decision reflects both the serious problem of online piracy and the potential injustices associated with the business of copyright litigation that has flooded the courts in recent years. According to the plaintiff, The Cobbler was illegally downloaded over 10,000 times in Oregon alone. If true, that is somewhat remarkable given how poorly the movie was received by both critics and viewers. See http://www.rogerebert.com/reviews/the-cobbler-2015 (“If one subscribes to the theory that you can learn as much from a bad movie as from a good one, this one’s a master class in what not to do.”) Although online piracy is a serious problem, the copyright litigation industry that has developed around that problem has also been highly criticized. As noted in the decision, other courts have been critical of the “paradigmatic troll [that] 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.”

For this particular defendant, the denial of attorney fees was undeniably helpful. However, it remains to be seen whether denying attorney fees motions in such cases will have any significant long-term impact on the number of BitTorrent cases filed in Oregon. Although fewer attorney fee awards may reduce some of the incentive for attorneys that file such cases, those that do bring such actions may be more likely to seek higher damages or settlement awards to offset that loss.