Malibu Media, LLC v. Palella, No. 18 C 3041, Slip Op. (N.D. Ill. Apr. 12, 2019) (Lee, J.).
Judge Lee denied defendant’s Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff Malibu Media’s claims because it improperly relied upon an IP address in order to identify defendant in this BitTorrent copyright infringement action regarding adult movies.
Defendant argued that his IP address was not a sufficient nexus to name him in Malibu Media’s suit, explaining that defendant was not in his home at a number of the times that the alleged contact with the IP address occurred and that it could have been any number of people, including roommates, a dogwalker or people at a park across from his home. The Court noted that some courts in the Ninth Circuit had held that a mere IP address without more evidence is not sufficient to file suit against the IP address owner. But the Court declined to follow that reasoning. Fed. R. Civ. P. 11 required a reasonable investigation, not that counsel “do everything within his or her power” to verify the claim before filing suit. The Court held that Malibu Media’s search, including hiring an investigator to track down the infringing IP address and issuing a subpoena to identify the owner of the address, was sufficient. While others may have had access to defendant’s wifi and, therefore, could be the infringer, Malibu Media could not have obtained additional information unless it staked out defendant’s home. Additionally, based upon the security available for wifi today, it is a reasonable assumption that the system’s owner is the infringer.