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Judge Lets Four Alleged Movie Pirates Skate

SEATTLE(CN) - Four people accused of sharing illegal copies of the movie "Elf-Man" persuaded a federal judge there is not enough evidence to support copyright infringement claims against them.

Elf-Man LLC, producer of the direct-to-DVD release "Elf-Man" sued Eric Cariveau et al. in Federal Court a year ago, accusing them of sharing a peer-to-peer file of the movie.

"Elf-Man" is a Christmas movie starring Jason Acuña, best known as "Wee Man" of the "Jackass" TV and movie series.

Elf-Man claims the defendants illegally copied and distributed the movie online.

"Despite the industry's efforts to capitalize on internet technology and reduce costs to end viewers through legitimate and legal means of online viewing such as through Netflix, Hulu, and Amazon Prime, there are still those that use this technology to steal motion pictures and undermine the efforts of creators through their illegal copying and distribution of motion pictures," Elf-Man's attorney Maureen VanderMay wrote in the complaint.

U.S. District Judge Robert Lasnik granted Elf-Man's motion to initiate discovery on the IP addresses of defendants, but noted that "the risk of false positives is very real."

"It is not clear that plaintiff could ... make factual contentions regarding an Internet subscriber's infringing activities based solely on the fact that he or she pays the Internet bill," Lasnik wrote in the order.

Elf-Man named 18 individual defendants in its first amended complaint. A default judgment was ordered against two of them; claims against the Doe defendants were dismissed.

Defendants Eric Cariveau, Becky Peloquin, Steven Peloquin and Leon Kimmerling filed a motion to dismiss the copyright infringement charges against them.

They argued that Elf-Man's allegations "fail to state a claim for relief that crosses the line between possible and plausible."

Lasnik agreed, and granted their motion to dismiss.

Elf-Man alleged that the defendants either intentionally stole the movie online or "facilitated" the copying when a third party downloaded it.

"The critical defect in this case is not the alternative pleading of claims of direct, contributory, and indirect infringement," the judge wrote. "Rather, the problem arises from the alternative pleading of the facts that are supposed to support those claims."

Lasnik continued: "The effect of the two 'or' conjunctions means that plaintiff has actually alleged no more than that the named defendants purchased Internet access and failed to ensure that others did not use that access to download copyrighted material. ...

"While it is possible that one or more of the named defendants was personally involved in the download, it is also possible that they simply failed to secure their connection against third-party interlopers."

Lasnik acknowledged that Elf-Man may have additional information about the defendants to bolster its factual allegations, and granted leave to file a second amended complaint.

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