In the Cashman Law Firm’s Federal Computer Crimes blog, we address a number of issues with regard to federal copyright law and its application to lawsuits dealing with the illegal downloading of movies and songs using the bittorrent protocol.
In the article entitled, “20th Century Fox v. small screenwriter. Suing for copyright infringement appears to be cheaper than advertising.” I mentioned that if the defendant (McIlvaine) is found guilty, she will likely need to file for bankruptcy to discharge her judgment because it is unlikely that if 20th Century Fox prevails in getting their $12 Million in copyright violation damages, McIlvaine will be able to pay it. As a response to my posting, a reader posited that “debts incurred for causing willful and malicious injuries are not dischargeable in bankruptcy,” referring to 11 U.S.C. s.523(a)(6).
The old Supreme Court case describing this issue was Tinker v. Colwell, 193 U.S. 473 (1904). However since that case, the law has been modified and in Kawaauhau v. Geiger, 118 S. Ct. 974 (1998), the Court limited the meaning of “willful and malicious injuries” to intentional torts, e.g., a doctor prescribing the wrong medication causing the patient’s infection to spread and ultimately to have the foot amputated. Thus, since copyright infringement is not one of the intentional torts, the rule preventing discharge for “willful and malicious injuries” would not include copyright infringement.
[Obviously this is not meant to constitute legal advice and one doing research on this topic should consult an attorney before proceeding. If I were to represent McIlvaine in her copyright lawsuit in New York, I would obviously update the case law with more recent cases of that district to confirm and strengthen what I have written above.]
Hi Mr. Cashman,
With regard to BK proceedings in IP cases for judgements, do you think today’s torrent trolls will contest a BK aggressively? If so would it be easy to discharge a default judgement? (no litigation on the merits for BK judge to consider) and no confession or finding of truth either. Also have you been contacted by previous defendants or have you observed the case law change making it easier to wipe the possible debt a copyright troll can impose on someone? I think this topic is worthy of a post, since many Doe’s think BK is a magic trick but you being specialized in it could definitely shed the light on its possibilities and limits.
Any advice you can give is greatly appreciated.
Thanks,
It is the embarrassment of every law firm who starts a blog only to post a few articles and abandon the blog. That is the case here. I wrote this article a few years ago, and while I still stand by it, none of the bittorrent cases have gone to trial on the merits. Similarly, I am still of the opinion that in a number of states, it would be possible to discharge a judgement for copyright infringement in a bankruptcy proceeding. Again, because the cases have not gone this far, I have been unable to test this.
The default judgments you refer to [for a “named and served” copyright infringement defendant failing to answer a complaint] fall under my general thought that copyright infringement judgments are likely dischargable in bankruptcy.
The caveat, however, is that even though bankruptcy takes place in a federal district court, many facets of it are state-based. Thus, it would be my recommendation that a defendant is best advised to consult a bankruptcy attorney licensed in that particular state to file the action.
Writing this response, I remember why I decided to put the article here rather than on the Torrentlawyer blog (http://torrentlawyer.wordpress.com). Attorneys (myself included) need to walk a fine line of educating people on blogs versus giving legal advice. Copyright is exclusively a federal matter; bankruptcy is not. Since bankruptcy is not an exclusively federal territory subject matter, I didn’t want to be writing articles on it which applied to states outside the states in which I am licensed to practice law.