- offering films for download over peer-to-peer networks;
- advertising the film as being available for download; or
- failing to take reasonable steps to ensure that the first and second acts of direct infringement did not take place
- Its pleadings needed to disclose a reasonable cause of action.
- There had to be an identifiable class of two or more people against whom the claim was brought
- Common questions of law or fact had to exist against those people.
- A class action had to be the preferable procedure to resolve the common questions in a just and efficient way.
- There needed to be a representative party who would fairly and adequately represent the interests of the class and have a plan for proceeding on behalf of other class members, among other things.
- Voltage’s argument that a cause of action existed against ISPs for providing internet access to persons making copyrighted works available for download was an “overly broad reading” of the Supreme Court’s earlier comments about what it meant to “authorize” an infringement.
- Voltage’s assertion that it identified thousands of IP addresses used to allegedly infringe its copyrights was insufficient to constitute a basis for the existence of an identifiable class, since the nexus between an IP address and a person actually infringing copyright while using that IP address was a highly technical and uncertain determination.
A class action was not the preferable procedure because Voltage’s forensic software was only capable of identifying IP addresses, but the determination of who was using the IP address at the given time was an individual – not common – issue. Further, relying on the notice-and-notice regime (designed for ISPs to notify users to cease infringing activity if detected) to facilitate a large-scale class proceeding would unfairly overburden ISPs and result in an unmanageable class procedure.
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