Several independent movie studios, including the makers of “The Hitman’s Bodyguard” and “London Has Fallen,” have suffered a setback in a Hawaii court. A magistrate judge is recommending a denial of their request for a $150,000 default judgment against the foreign operator of an APK site that offered copies of the pirate apps Popcorn Time and Showbox.
In April, a group of movie companies filed a lawsuit against the operators of various websites that promoted and distributed the Showbox app.
Showbox and similarly named clones are used by millions of people. These apps enable users to stream movies via torrents and direct sources, using a Netflix-style interface.
The tools are a thorn in the side of movie companies, including those behind “The Hitman’s Bodyguard,” “London Has Fallen,” and “Hunter Killer.” In a complaint filed at a U.S. District Court in Hawaii, the companies pointed out that Showbox facilitates massive piracy.
“The Defendants misleadingly promote the Show Box app as a legitimate means for viewing content to the public, who eagerly install the Show Box app to watch copyright protected content, thereby leading to profit for the Defendants,” the 58-page complaint read.
The movie outfits went after several defendants suspected of having ties to one or more piracy-related sites. This includes a Vietnamese man named Nghi Phan Nhat, who allegedly operates the APK download portal ‘apkmirrordownload.com.’
The site stood accused of offering the ShowBox and Popcorn Time apps, which have since been removed, but the defendant never responded to the allegations in court. This prompted the movie companies to file a motion for a default judgment.
In September, they requested $150,000 in statutory damages, as well as thousands of dollars in attorney fees and costs. In addition, they asked for an injunction ordering third party services such as hosting companies and domain registrars to stop doing business with the site.
While the defendant remained silent, the Court referred that matter to a magistrate judge for a recommendation. Although default judgments are often easily granted, in this case, Hawaii’s Magistrate Judge Kenneth Mansfield advises denial of the request.
In their motion, the filmmakers argued that the Court has personal jurisdiction over the operator of the site. This requires a relationship between the foreign defendant and the US. To establish this, it has to pass the three-part minimum contacts test.
The first part of this test is to show that the defendant purposefully directed activities to the United States or purposefully availed himself of the privileges of conducting activities there.
According to the movie companies, this is certainly the case, since the site is quite popular in the US and also presented entirely in English. However, that’s not enough to establish personal jurisdiction, according to the Judge.
“That the APK Site is in English does not show purposeful direction, as the United States is not the only country with English as an official language. Nor is Plaintiffs’ allegation that the United States is the country with the second most traffic to the APK site evidence of purposeful direction,” Judge Mansfield writes.
The filmmakers further argued that the defendant purposefully availed himself to the State of Hawaii by conducting business with US-based companies, domain registrar Namesilo and CDN provider Cloudflare. However, the Magistrate Judge disagrees again.
“While Defendant Nhat may have contacts with California and Arizona pursuant to his registration with United States companies, such contacts are not extensive enough to invoke nationwide jurisdiction such that it is reasonable to subject Defendant Nhat to litigation in any United States federal forum,” the Judge writes.
The fact that the APK download site references the US DMCA law on its site is not good enough either. According to the Judge that merely means that the site is in compliance with the DMCA, not that the defendant subjects himself to the jurisdiction of US courts.
Based on these and other arguments, Judge Mansfield concludes that the Court doesn’t have personal jurisdiction over the alleged site operator. Without even considering the other two elements of the minimum contacts test, he recommends denying the motion for a default judgment.
The recommendation is a setback for the movie companies. If the Court adopts it, they will not get their $150,000 damages through a default judgment. Neither will they get an injunction to take the site offline.
The filmmakers had more success a few weeks ago when they reached an agreement with the Pakistani operator of ‘latestshowboxapp.com,’ who agreed to pay a $150,000 settlement. Whether that will be paid in full is another question.
A copy of Magistrate Judge Kenneth Mansfield’s findings and recommendations is available here (pdf).
Many thanks to TorrentFreak for the breaking news.