Over recent months, software titan Microsoft Corporation has filed a number of “Doe” lawsuits in the U.S. District Court for the Western District of Washington.  The suits allege both copyright and trademark claims against anonymous defendants accused of efforts to activate unlicensed copies of popular Microsoft software products.

The products named in the complaints include various versions of Windows and Office suites.  The complaints further described how Microsoft uses unique “product keys” used in the installation and activation of its software by consumers:

A Microsoft product key is a 25-character alphanumeric string generated by Microsoft and provided to customers and OEMs. Generally, when customers or [Original Equipment Manufacturers] OEMs install Microsoft software on a device, they must enter a product key. Then, as part of the activation process, customers and/or OEMs voluntarily contact Microsoft’s activation servers over the Internet and transmit their product keys and other technical information about their device to the activation servers. The majority of the activations involved in this matter contacted servers that are physically located in Washington.

Using “cyberforensics,” Microsoft allegedly received and analyzed information the targeted IP addresses used in the activation of unlicensed software:

Microsoft’s cyberforensics have identified several thousand product activations originating from IP address[] (“the IP Address”), which is presently assigned to [ISP], and which, on information and belief, is being used by the Defendants in furtherance of the unlawful conduct alleged herein. A material percentage of these activations have characteristics that, on information and belief, demonstrate that Defendants are using the IP Address to activate pirated software.

The complaints go on to make claims for violations of the Copyright Act based on the unlicensed reproduction of the software products.  In addition, the complaint alleges trademark infringement arising from the infringement of Microsoft’s registered trademarks and service mark, claiming that “Defendants’ activities are likely to lead the public to conclude, incorrectly, that the infringing materials that Defendants are installing originate with or are authorized by Microsoft, thereby harming Microsoft, its licensees, and the public.”

UPDATE (5/19/17): Microsoft filed another similar lawsuit on 5/12/2017.

The suits seek declaratory relief, injunctions against the Defendants, damages, attorney’s fees and costs. The actions were filed by Davis Wright Tremaine, LLP in Seattle, Washington.  A case listing with links to complaints is below.

Parties and subscribers receiving ISP notices of these actions can contact attorney Benjamin Justus for a free consultation regarding possible options.

Filed: 02/25/2016
Case No. 2:16-cv-00276
Microsoft Corporation v. Does 1-10

Filed: 06/01/2016
Case No. 2:16-cv-00804
Microsoft Corporation v. Does 1-10

Filed: 06/01/2016
Case No. 2:16-cv-00807
Microsoft Corporation v. Does 1-10

Filed: 02/22/2017
Case No. 2:17-cv-00286
Microsoft Corporation v. Does 1-10

Filed: 05/12/2017
Case No. 2:17-cv-00747
Microsoft Corporation v. Does 1-10

Several production companies continue a wave of BitTorrent-related copyright lawsuits, all filed by the same lawyers in the U.S. District Court, District of Oregon.

Several of the lawsuits involve the 2013 film Dallas Buyers Club.  The allegations of the complaints are similar to those made in many prior lawsuits filed by Dallas Buyers Club, LLC in the Oregon District Court.

A few other cases were filed by Killer Joe Nevada, LLC.  As Troll Defense has previously reported, these cases involve the violent 2012 “gothic” black comedy film Killer Joe.

Both Killer Joe and Dallas Buyers Club feature Matthew McConaughey in leading roles, and likely the involvement in each film of heavy-handed producer Voltage Pictures, LLC has something to do with the parallel enforcement actions.

In some of the recent actions, Voltage Pictures and Glacier Films 1, LLC are combined as plaintiffs alleging Glacier Films’ copyright infringement claims and Voltage Pictures’ claims for violations of Oregon State Trademark laws. These particular cases involve the 2014 film American Heist, which was summarized in a Variety review as follows:

As generic as its title, American Heist is a pile of crime-meller cliches, with Hayden Christensen as the good brother trying to stay on the straight-and-narrow and Adrien Brody as the bad boy who drags Junior into an ill-starred bank robbery scheme.

 This tactic was last employed by Voltage Pictures in other Oregon lawsuits filed by the same lawyer last year.  In other cases, Glacier Films (USA), Inc. is a co-plaintiff, making only copyright claims.

More recently, there was another filing by TCYK, LLC, which had been relatively inactive since earlier suits dating back over a year ago.  These actions are based on The Company You Keep, a 2012 political thriller starring Robert Redford, and another picture in which Voltage Pictures has some involvement or interest.

Each of the lawsuits names a single Doe party as defendant and seeks statutory damages under the Copyright Act, attorney’s fees and injunctive relief.  The cases were filed by attorney Carl D. Crowell of Salem, OR.

UPDATE (11/30/15): A more recent Glacier Films case joins together its claims against 8 separate Doe parties.  As discussed in a prior post, this indicates a continued effort by Crowell Law and its film company clients to return to a prior pattern of multi-Doe lawsuits in Oregon, based on allegations of common infringing conduct and permissive joinder.

UPDATE (8/10/16): More recent TCYK and Glacier Films cases were filed against single Does.  This follows a handful of decisions from this Court which each concluded that BitTorrent cases were not appropriate for permissive joinder of several defendants.

Listings of the cases, together with links to complaints, are as follows:

Case No. 3:15-cv-444
Dallas Buyers Club, LLC v. Doe-73.25.31.24
Filed: 03/18/2015

Case No. 3:15-cv-446
Dallas Buyers Club, LLC v. Doe-76.115.38.251
Filed: 03/18/2015

Case No. 3:15-cv-447
Dallas Buyers Club, LLC v. Doe-198.0.58.131
Filed: 03/18/2015

Case No. 3:15-cv-448
Dallas Buyers Club, LLC v. Doe-173.164.116.49
Filed: 03/18/2015

Case No. 3:15-cv-449
Dallas Buyers Club, LLC v. Doe-50.137.186.141
Filed: 03/18/2015

Case No. 3:15-cv-450
Dallas Buyers Club, LLC v. Doe-76.105.252.19
Filed: 03/18/2015

Case No. 3:15-cv-608
Killer Joe Nevada, LLC v. Doe-67.160.136.201
Filed: 04/12/2015

Case No. 3:15-cv-609
Killer Joe Nevada, LLC v. Doe-73.164.254.7
Filed: 04/12/2015

Case No. 3:15-cv-610
Killer Joe Nevada, LLC v. Doe-71.237.173.145
Filed: 04/12/2015

Case No. 6:15-cv-611
Dallas Buyers Club, LLC v. Doe-98.246.98.60
Filed: 04/13/2015

Case No. 6:15-cv-612
Dallas Buyers Club, LLC v. Doe-50.139.121.165
Filed: 04/13/2015

Case No. 6:15-cv-668
Voltage Pictures, LLC v. Doe-50.186.40.95
Filed: 04/20/2015

Case No. 6:15-cv-669
Voltage Pictures, LLC v. Doe-50.137.54.92
Filed: 04/20/2015

Case No. 3:15-cv-975
Glacier Films (USA), Inc. et al v. Doe-24.21.98.129
Filed: 06/03/2015

Case No. 6:15-cv-977
Glacier Films (USA), Inc. et al v. Doe-24.20.233.254
Filed: 06/03/2015

Case No. 3:15-cv-1040
Glacier Films (USA), Inc. et al v. Doe-76.115.63.153
Filed: 06/11/2015

Case No: 3:15-cv-01332
Glacier Films (USA), Inc. et al v. Doe-24.21.161.126
Filed: 07/17/2015

Case No: 6:15-cv-01546
Glacier Films (USA), Inc. et al v. Doe-24.20.10.154
Filed: 08/14/2015

Case No: 3:15-cv-01632
Glacier Films (USA), Inc. et al v. Doe-73.25.26.28
Filed: 08/28/2015

Case No: 3:15-cv-01633
Glacier Films (USA), Inc. et al v. Doe-73.25.111.18
Filed: 08/28/2015

Case No: 3:15-cv-01725
Glacier Films (USA), Inc. et al v. Doe-76.115.17.40
Filed: 09/11/2015

Case No: 3:15-cv-01727
Glacier Films (USA), Inc. et al v. Doe-73.37.117.56
Filed: 09/11/2015

Case No: 3:15-cv-01728
Glacier Films (USA), Inc. et al v. Doe-73.190.89.157
Filed: 09/11/2015

Case No: 3:15-cv-01729
Glacier Films (USA), Inc. et al v. Doe-73.180.2.94
Filed: 09/11/2015

Case No: 3:15-cv-01730
Glacier Films (USA), Inc. et al v. Doe-71.238.59.116
Filed: 09/11/2015

Case No.: 3:15-cv-01772
Killer Joe Nevada, LLC v. Doe-50.186.19.7
Filed: 09/18/2015

Case No.: 3:15-cv-01773
Dallas Buyers Club, LLC v. Doe-67.171.181.233
Filed: 09/18/2015

Case No. 3:15-cv-01815
Killer Joe Nevada, LLC v. Doe-71.237.180.187
Filed: 09/25/2015

Case No. 3:15-cv-01816
Glacier Films (USA), Inc. et al v. Doe-71.56.153.1
Filed: 09/25/2015

Case No. 3:15-cv-01817
Glacier Films (USA), Inc. et al v. Doe-73.164.151.227
Filed: 09/25/2015

Case No. 3:15-cv-01828
TCYK, LLC et al v. Doe-24.21.175.89
Filed: 09/26/2015

Case No: 3:15-cv-01867
Glacier Films (USA), Inc. et al v. Doe-24.20.72.210
Filed: 10/02/2015

Case No: 6:15-cv-01868
Killer Joe Nevada, LLC v. Doe-50.202.219.46
Filed: 10/02/2015

Case No: 3:15-cv-01911
Glacier Films (USA), Inc. et al v. Doe-71.193.182.60
Filed: 10/09/2015

Case No: 3:15-cv-01912
Glacier Films (USA), Inc. et al v. Doe-24.21.153.226
Filed: 10/09/2015

Filed: 10/30/2015
Case No: 6:15-cv-02053
Glacier Films (USA), Inc. v. Doe-24.20.202.92

Filed: 10/30/2015
Case No: 3:15-cv-02054
Glacier Films (USA), Inc. v. Doe-24.22.28.35

Filed: 10/30/2015
Case No: 3:15-cv-02055
Dallas Buyers Club, LLC v. Doe-24.21.227.55

Filed: 11/14/2015
Case No: 3:15-cv-02139
Glacier Films (USA), Inc. v. Doe-24.20.141.220, et al

Case No. 3:16-cv-01411
Glacier Films (USA), Inc. v. Doe-50.186.63.76
Filed: 07/11/2016

Case No. 3:16-cv-01485
TCYK, LLC v. Doe-173.87.37.3
Filed: 07/21/2016

As Troll Defense earlier reported, the owners to the rights to the film Dallas Buyers Club are prosecuting in Oregon U.S. District Court many “singleton” lawsuits against Doe parties, alleging both federal Copyright Act and Oregon State Trademark violations.  Voltage Pictures, LLC and co-plaintiff Dallas Buyers Club, LLC combine the copyright infringement claims of Dallas Buyers Club, LLC with the claims of Voltage for violations of the Oregon Trademark Act, ORS 647.

Just last week, these plaintiffs filed a batch of new complaints.  The new case captions (with links to complaints) are as follows:

Voltage Pictures, LLC et al v. Doe-24.21.103.107, Case No. 3:14-cv-1780

Voltage Pictures, LLC et al v. Doe-50.139.49.233, Case No. 3:14-cv-1781

Voltage Pictures, LLC et al v. Doe-74.92.164.133, Case No. 3:14-cv-1782

Voltage Pictures, LLC et al v. Doe-98.232.237.231, Case No. 6:14-cv-1783

Voltage Pictures, LLC et al v. Doe-24.21.216.109, Case No. 6:14-cv-1784

The owners to the rights to the acclaimed film Dallas Buyers Club are back in Oregon U.S. District Court with a batch of “singleton” lawsuits against Doe parties, alleging both federal Copyright Act and Oregon State Trademark violations.

As Troll Defense earlier reported, Voltage Pictures, LLC teamed with another production company to bring combination copyright-trademark suits based on The Company You Keep.

This time, joining Voltage as co-plaintiff is Dallas Buyers Club, LLC, the purported owner of copyrights to the award-winning film.   The new Oregon cases combine the copyright infringement claims of Dallas Buyers Club, LLC with the claims of Voltage for violations of the Oregon Trademark Act, ORS 647.

The new copyright claims contain an “ALTERNATE THEORY – INDIRECT INFRINGEMENT,” which alleges that “Defendant obtained Internet access through an ISP and permitted, facilitated and promoted the use of the Internet access for the infringing of DBC’s exclusive rights under The Copyright Act by others.”  The complaints also contain some factual allegations which appear intended to account for the fact that investigations of BitTorrent activities often do not reveal who the individual BitTorrent user may be.  For example, it is alleged that:

20. Defendant’s IP address has been observed as associated with the peer-to-peer exchange of hundreds of copyrighted titles through the BitTorrent network, a record of which can be filed with the Court on request.

21. The volume and titles of the activity associated with defendant’s IP address indicates that the defendant is likely the primary subscriber of the IP address or someone who resides with the subscriber, as such activity indicates the defendant is an authorized user of the IP address with permissive access.

22. The volume of the activity associated with defendant’s IP address indicates that anyone using or observing activity on the IP address would likely be aware of the conduct of the defendant.

23. The volume and titles of the activity associated with defendant’s IP address indicates that the defendant is not a young child, but an adult with mature tastes.

The known case captions (with links to complaints) are as follows:

Voltage Pictures, LLC v. Doe-50.186.3.248, Case No. 6:14-cv-1405

Voltage Pictures, LLC v. Doe-24.22.71.110, Case No. 6:14-cv-1406

Voltage Pictures, LLC v. Doe-67.189.16.171, Case No. 3:14-cv-1407

Voltage Pictures, LLC v. Doe-98.232.236.10, Case No. 6:14-cv-1408

Voltage Pictures, LLC v. Doe-74.92.171.141, Case No. 3:14-cv-1409

Some weeks after a batch of its Oregon state trademark lawsuits arising from Dallas Buyers Club were dismissed for improper joinder, Voltage has returned to the U.S. District Court in Oregon with at least two “singleton” lawsuits against Doe parties.  This time the cases are based on The Company You Keep, a 2012 political thriller starring Robert Redford.

This time, joining Voltage as co-plaintiff is TCYK, LLC, the purported owner of copyrights to the film.  TCYK is known for previously filing many copyright infringement lawsuits in the federal courts of Illinois, Indiana, Colorado, Florida, Minnesota, Ohio, Tennessee, and Wisconsin.

The new Oregon cases combine the copyright infringement claims of TCYK with the claims of Voltage for violations of the Oregon Trademark Act, ORS 647.  After Voltage’s state trademark lawsuits related to Dallas Buyers Club were removed to the federal court, about two months ago, Troll Defense previously speculated that Voltage might choose to utilize the federal court’s jurisdiction to amend the complaints and add claims under the Copyright Act.

An interesting aspect of the new copyright claims is that they contain an “ALTERNATE THEORY – INDIRECT INFRINGEMENT,” which alleges that:

61. Defendant obtained Internet access through an ISP and permitted, facilitated and promoted the use of the Internet access for the infringing of TCYK, LLC’s exclusive rights under The Copyright Act by others.

62. Defendant failed to reasonably secure, police and protect the use of their Internet service against use for improper purposes such as piracy, including the downloading and sharing of the motion picture by others.

63. Defendant’s failure was with notice as piracy is in violation of the license for access granted to defendant by their ISP which issued defendant an IP address to access the internet.

64. Defendant’s failure was with notice as the volume of activity associated with IP address [ ] is such that defendant either knew of or should have known of the infringing activity.

These allegations appear intended to address the enduring challenge for copyright plaintiffs associated with the fact that investigation of BitTorrent activities often do not reveal who the individual BitTorrent user may be.  This “alternate theory” seems to account for the lack of specificity in the investigation and the frequent scenario where the ISP subscriber is not the actual infringer.

The known case captions (with links to complaints) are as follows:

Voltage Pictures, LLC et al v. Doe-76.105.157.206, Case No. 3:14-cv-01191 (D. Or.)

Voltage Pictures, LLC et al v. Doe-50.141.98.1, Case No. 6:14-cv-01193 (D. Or.)

Just last Friday, the two Voltage Pictures, LLC Oregon State Trademark lawsuits pending in the Circuit Court for Marion County, Oregon were removed to the U.S. District Court for the District of Oregon.  These cases involve the motion picture Dallas Buyers Club.

The new District Court Case Nos. are 6:14-cv-00812-MC (which relates to the state court Case No. 14C13823), and 6:14-cv-00816-TC (which relates to the state court Case No. 14C13824).  The removal proceeding was initiated by attorney Morgan E. Pietz on behalf of some of his clients.

As this is a new development, Troll Defense will continue to monitor the proceedings and the form the cases take.  We understand that Voltage Pictures will contest the removal and seek to have the cases remanded to the state court.  One can wonder, if the cases do remain in federal court, whether Voltage will later seek to take advantage of the federal court’s jurisdiction to amend the complaints and add claims under the Copyright Act, or the federal Lanham Act, which includes provisions for the protection of registered trademarks.

Music Group Services, US and its offshore affiliate have filed a Seattle U.S. District Court lawsuit for a host of John Doe claims related to “unauthorized” statements made via Twitter feeds.

Music Group is a holding company for a number of different brands of professional-grade music production and performance equipment, including loudspeakers, amplifiers, mixers, computer-based recording and DJ products, microphones, headphones, wireless systems, musical instruments and lighting systems.   Among the several brands held by Music Group is Behringer, a company founded by Swiss musician Uli Behringer, who pioneered the development and China-based manufacture of professional-grade mixing equipment, making mixers available at more affordable price levels.

The Music Group lawsuit alleges that one or more Doe parties registered the Twitter accounts “Fake Uli Behringer” and “NotUliBehringer” and made various disparaging tweets against Music Group during early 2010.  This allegedly “included assertions that MUSIC Group supported tax evasion, domestic violence, child abuse, and misogyny,” as well as posting other damaging remarks about Music Group products, employees and contractors.  Music Group suspects that one of the Does is a current of former employee of Music Group.

Last month, according to the lawsuit, Twitter responded to Music Group’s notice and supposedly refused to remove the offending tweets or de-activate the accounts.

The complaint contains numerous counts including  violations of the Computer Fraud and Abuse Act, 18 U.S.C.A. § 1030; violations of the Lanham Trademark Act, 15 U.S.C.A. § 1125 (cyberpiracy, trademark infringement, trade name infringement and false designation of origin); unfair competition under state and federal law; copyright infringement; and breach of contract.

My initial thought upon understanding that the offending tweets were all made during early 2010 was whether the Does might argue for a statute of limitations defense.  Although the Lanham Act does not have its own statute of limitations, courts have used limitations periods contained in “related” contracts between the parties, or limitations periods in “analogous” state statutes.  In Washington State, a six-year statute of limitations applies to claims for breach of written contracts (RCW 4.16.040), while a three-year limitations period applies to general claims for injury to persons or property, fraud, and claims arising from oral contacts (RCW 4.16.080).  The Copyright Act (17 U.S.C. § 507) states a three-year limitations period for civil copyright claims.   It is possible that Music Group could claim to have “discovered” the tweets sometime later than the initial postings, and seek a delay or “tolling” of the running of the limitations periods.

The suit was filed by Seattle law firm Seed Intellectual Property Group PLLC under Case No. 14-cv-621 (W.D. Wash.)

We have completed review of the Voltage Pictures, LLC lawsuits filed in Marion County, Oregon in connection with Dallas Buyers Club.  

Instead of suing for copyright infringement, conversion or negligence, Voltage has stated claims against the many Does for violations of the Oregon Trademark Act, ORS 647.   As with trademarks protected by the federal Lanham Act, the Oregon Trademark Act is intended to protect words, names, symbols or designs used to distinguish goods or services promoted in commerce.

The Oregon Secretary of State maintains an registry of trademarks used in Oregon, and apparently Voltage Pictures has registered its own mark there. Voltage alleges in this case that:

The VOLTAGE PICTURES mark is unique, distinctive, and clearly visible in the presentation and the viewing of plaintiff”s motion picture

The VOLTAGE PICTURES mark is valuable, well known and famous as it is associated with numerous award winning motion pictures in addition to Dallas Buyers Club.

The complaint goes on to make various allegations about Bittorrent and other file-sharing clients, IP addresses, the bad acts of the Does, harms to the motion picture industry, and other statements that are essentially identical to many other complaints filed in Bittorrent copyright infringement cases (albeit in a more detailed fashion).

However, the Voltage complaint alleges that, by using Bittorrent to use, copy or distribute Dallas Buyers Club, the Does have infringed Voltage’s registered Oregon trademark.

The Oregon Trademark Act allows for remedies as follows:

647.105 Remedies for infringement.

(1) An owner of a mark registered under this chapter may proceed in a civil action to seek an injunction against the manufacture, use, display or sale of a counterfeit or imitation of the mark. A court of competent jurisdiction may:

(a) Grant injunctions to restrain the manufacture, use, display or sale as the court deems just and reasonable;.
(b) Require the defendant to pay to the owner all profits the defendant derived and all damages the owner suffered from the manufacture, use, display or sale; and
(c) Order counterfeits or imitations in the defendant’s possession or under the defendant’s control to be delivered to an officer of the court or the owner to be destroyed.

(2) If the court finds that the defendant acted in bad faith, with knowledge or otherwise according to the circumstances of the case, the court in the court’s discretion may enter a judgment in an amount not to exceed three times the sum of the defendant’s profits and the owner’s damages and reasonable attorney fees. If the court finds that the plaintiff acted in bad faith, vexatiously, wantonly or for oppressive reasons, the court in the court’s discretion may award reasonable attorney fees to the defendant.

Voltage has specifically asked for an award of attorneys fees in its complaint.  However, it has otherwise only sought an injunction against further infringement, rather than lost profits or damages.  This is likely because the Act states that a plaintiff cannot recover damages or lost profits unless the defendant has “appl[ied]” a counterfeit or imitation of a protected mark to a product, its packaging or advertising intended to promote the sales and distribution of goods and services.  It is impossible to see how that could occur in a standard Bittorrent file download transaction.