Several movie companies have withdrawn a broad injunction request that would require ISPs and other Internet services to block access to the Popcorn Time app. The decision comes shortly after Google intervened. The filmmakers shouldn’t be disappointed, however, as a Virginia magistrate judge is recommending an award of millions in copyright and trademark infringement damages.
Copyright holders have tried a wide variety of legal options to tackle online piracy, including lawsuits.
This year we have seen a series of complaints in US courts where filmmakers sued third-party services for facilitating piracy. This includes VPN providers and their hosting companies.
VPN.ht is one of the companies that was sued. Last week it settled the case by agreeing, among other things, that it would block BitTorrent traffic and keep logs on US servers. In response, the VPN announced that it would stop using US-based servers, to ensure the privacy of its users.
Filmmakers Demand Millions and More
The settlement didn’t end the lawsuit completely as the anonymous operators of Popcorntime.app were targeted in the same case. Since the Popcorn Time operators failed to respond in court, the filmmakers requested a default judgment of millions of dollars in damages as well as a broad injunction.
The proposed injunction would not just apply to the Popcorn Time operators, it also required third-party Internet services to take action.
For example, third-party service providers, including Cloudflare and Google, would have to stop people from accessing alternative Popcorn Time domains such as popcorn-ru.tk. Those measures include the removal of all search engine results.
The proposed injunction would also compel regular ISPs to block subscribers’ access to Popcorn Time domain names. If granted, that broad language could affect a wide variety of Internet services including Comcast, Verizon, and AT&T.
Filmmakers Demand Millions and More
Recognizing the gravity of the situation, Google asked the Virginia federal court to be heard in the matter so it could object to the far-reaching proposals. However, this is no longer needed, as the filmmakers have withdrawn most of their demands.
A few days after Google wrote to the court, the filmmakers submitted an amended proposed order which limits the scope of the requested injunction. All demands for third-party companies to take action, including Google, have been removed.
The paperwork doesn’t explain why the rightsholders took this action. It’s possible that they were not eager to go head to head with Google over the matter. At least, not in this case.
Judge Sides With Filmmakers
The withdrawal of the blocking measures doesn’t mean that the filmmakers are leaving empty-handed. On the contrary, last Friday Virginia Magistrate Judge Theresa Carroll Buchanan issued her report and recommendation on the default judgment, which brings good news for the rightsholders.
Among other things, Judge Buchanan recommends awarding damages for trademark infringement, DMCA violations, contract breach, and willful copyright infringement against Popcorntime.app.
“With Defendant Doe’s BitTorrent software Popcorn Time users can search, download, and stream copies of the Plaintiffs’ Works through peer-to-peer sharing, which results in the unauthorized distribution and public performance of the Copyright Plaintiffs’ Works. Accordingly, the undersigned finds that Plaintiffs have sufficiently pled an infringement claim under the Copyright Act,” Judge Buchanan writes.
“Plaintiffs requests the maximum possible statutory damages award of $150,000 per Work (here, twenty-one) for a total of $3,150,000. Because of Defendant Doe’s willful infringement, the undersigned finds that Plaintiffs’ request for $3,150,000.00 total damages is reasonable.”
In addition to the copyright infringement damages, the Judge also recommends $2,000,000 in trademark infringement damages as well as $525,000 in damages for violating the DMCA, among other things. Added up, this brings the total damages to $5,734,946.74.
The recommendation also approves an injunction that requires the Popcorn Time operators to stop any infringing activity. The measures against third party services such as Google are off the table, and Judge Buchanan says that she would not have approved these anyway.
“As discussed above, the Plaintiffs have withdrawn any request that this Court order third-party providers, like Google, to cease providing service to and to block Defendant Doe, which the undersigned was nonetheless prepared to reject,” Judge Buchanan adds.
The Report and Recommendation is not final yet and still has to be approved by the court. If that happens, the filmmakers will score a big win. However, getting paid by the anonymous Popcorn Time operators will probably be quite a challenge.
A copy of Virginia Magistrate Judge Theresa Carroll Buchanan’s Report and Recommendations is available here (pdf)
Many thanks to TorrentFreak for the breaking news.