Jonathan LA Phillips, Attorney at Law
Illinois IP Attorney

Updates on BitTorrent Suit filings and decisions

Updates concerning suits by Strike 3 Holdings, Malibu Media, Bodyguard Productions, and others.

Supreme Court case to affect BitTorrent suits?

The Illinois State Bar Association will be publishing an article of mine soon. It discusses the recent Supreme Court decision in Fourth Estate Pub. Benefit Corp. v., LLC. In that case, the Court cleared up a debate concerning prerequisites for filing a copyright lawsuit. Do you need a registration of a copyright, or just a pending application for registration, to file an infringement lawsuit. You need a registration.

Do BitTorrent plaintiffs have registrations? Not always. In fact, Judge Furman in the Southern District of New York just issued this Order in a Malibu Media case.

It is hereby ORDERED that Plaintiff show cause in writing by March 12, 2019, why its complaint should not be dismissed for failure to state a claim upon which relief can be granted — specifically, for failure to allege that registration or preregistration of the copyright claims at issue had “been made” prior to the filing of this action. 17 U.S.C. § 411(a); see Fourth Estate Pub. Benefit Corp. v., LLC, No. 17-571, 2019 WL 1005829 (U.S. Mar. 4, 2019). If Plaintiff fails to show good cause, or does not file anything by that date, the Court may dismiss this action without further notice to Plaintiff. See Thomas v. Scully, 943 F.3d 259, 260 (2d Cir. 1991) (providing that, so long as it gives the plaintiff “an opportunity to be heard,” a “district court has the power to dismiss a complaint sua sponte for failure to state a claim on which relief can be granted”).d

You can add this potential defense to the others Jonathan can explore with you.