Intellectual Property: Fees/Costs Award To Prevailing Defendant Affirmed By Ninth Circuit In BitTorrent Network Direct and Contributory Copyright Suit Dismissed By Plaintiff After It Became Clear No Case Could Be Alleged

Case Was Exceptional Because Plaintiff Had No Proof Defendant Was The Infringer.

            In Cobbler Nevada, LLC v. Gonzales, No. 17-35041 (9th Cir. Aug. 28, 2018) (published), plaintiff sued a defendant registered IP address for direct and contributory copyright infringement based on allegations the address was an infringer for unauthorized downloading and distribution of the film “The Cobbler” through peer-to-peer BitTorrent networks. Plaintiff voluntarily dismissed the suit after it was clear that it was not going to amend the complaint to satisfy the magistrate judge assigned to settle the pleadings. The district judge then awarded the defense $17,232.40 in fees and $252.50 in costs after concluding the case was exceptional so as to justify fee shifting under 17 U.S.C. § 505.

           The Ninth Circuit affirmed. The district judge carefully assessed the Fogerty factors in coming to a decision. The appeals court especially agreed with the district judge that the suit was objectively unreasonable given that the IP registered address owner was not an occupant of the adult foster care home associated with the address such that he was not the likely infringer.