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No, You Can't Claim 'Negligence' In a Copyright Case
NewYorkCountryLawyer writes "In one of the myriad BitTorrent downloading cases against individuals, one plaintiff's law firm thought they'd be clever and insert a 'negligence' claim, saying that the defendant was negligent in failing to supervise his roommate's use of his WiFi access. Defendant moved to dismiss the negligence claim on the ground that it was preempted by the Copyright Act, and the Electronic Frontier Foundation filed an amicus curiae brief (PDF) agreeing with him. Judge Lewis A. Kaplan agreed, and dismissed the complaint, holding that the 'negligence' claim was preempted by the Copyright Act."
Whilst I get that suing people for negligence, where, say, it caused some nuclear warheads to explode in their silos makes sense. However, negligence on the part of someone who is not doing the media's job for them (policing copyright)? Seriously?
Didn't they fail to monitor the misuse? What about Backbone providers? And what about not invading roommate's privacy? Total BS from the judges.
In Germany, we have something called "Störerhaftung" (disrupter liability), which means liability to prevent infringement (but not liability for the infringement itself). Needless to say, intentionally open wireless hotspots which don't require user registration are a rarity in Germany, much to the delight of mobile phone network operators.
If I read it correctly (OK that's plenty optimistic), it sounds like the defendant knew that his roommate was using his (defendant's) internet connection to pirate material. It wasn't a case where, let's say a parent is held liable for works downloaded by a teenage son from the upstairs bedroom.
So the title of this article may be too broad.
So all I need to do now if I get sued by a copyright holder is claim that my wireless could be used by other people, and therefore you can't use the IP address to identify me?
I mean, I know that's a fact, but does this set any precedent in the law?
Sure would be nice if the law had more to do with facts....
expandfairuse.org
1. Play your copywritten music in public. 2. When people in public use phones, music is being illegally copied and redistributed. 3. Sue people with phones. 4. There is no ??? its just profit. And it is probably the next bullshit scheme they will try, too.
This seems to be a ruling barring a complaining copyright holder from piling a negligence claim on top of any statutory damages.
So, if the kid here could show that he didn't do the downloading, but his roommate did he could still be held responsible by negligence.
With this ruling, the plaintiff is limited to statutory damages against the actual infringer, be that the defendant or his roommate.
In Germany there is an odd situation right now, where ISPs can't be held accountable for what their users do, while private individuals or small hot spot operators are (somewhat) liable for someone else using their network for illegal activities. This basically means you can't open up your WiFi to visitors and neighbours without spying on their Internet usage.
(On the other hand, in contrast to the US, if you get caught, you don't have to pay $1.5 million (or even $54,000) for copyright infringement.)
The movie in question is "Corbin Fisher's Down on the Farm". Don't do a google search - it's an adult film. I'm told the adult film industry files these suits expecting people to settle rather than be publicly embarrassed by what they were downloading.
You can't claim negligence if you don't have the copyright for the works you're suing about...
At least that seems to be the problem here...
In short, the referenced documents on Beckerman's page, indicate that ScumSuckingRodent (TM) (C) plaintiff sued for infringement of "Some stupid pron title" but the registered title was "Some Horny gay guys - some stupid pron title"
So, the infringement suit was dismissed.
As a result, you can't claim negligence on an infringement that didn't occur.
Did I miss something more nuanced - because it seems Beckerman is implying there's something more fundamental here?
-Greg
I had my wireless router hacked once and it didn't take long before I noticed it because a password was added to it. To make a long story short, I had to find another open wireless signal. By now you have probably realized that "my router" was actually someone else's. But no one needs to know.
I knew that this sort of ruling would eventually happen.
Doesn't bode well for people who have their wifi cracked ..
---- Booth was a patriot ----
How do you read a copyright license before you download the file?
I know that Verizon and most carriers, when the provision new net service give the customer a WiFi access point/router that only uses WEP encryption. I also know that with Backtrack V, you can pretty much crack WEP easily.
With that in mind - I would simply bring up the fact that the default WEP is the real point of negligence. Which means it's either the carrier (E.g. Verizon) or it's the manufacturer.
In Germany, in a case of basic common sense, judges repeatedly stated, that you can’t guarantee a link between IP address and person, and hence a IP address is pretty much meaningless in court. Which is why here, you can simply throw their racketeering scaremongering letters to the trash, and never hear from them again. In court they wouldn't stand a chance in any case. Not only because of this.
The sad thing is that "negligence" is exactly what the French 3-strikes HADOPI law is based on (Article 6 11): http://www.laquadrature.net/wiki/HADOPI_translation Or maybe it's not so sad, because if that's the only way the MAFIAA found to get this law passed, they must indeed have been running out of options...
I'm a little confused. If the consumer is responsible for what his room mate, kid, girlfriend, etc. does on his connection, why isn't the ISP responsible for what the consumer does? Yeah, yeah, I know "because the law says so" but what batshit logic is that? So this means if I want to pirate some software, movies, or music I can jump onto my neighbor's wifi and download it. Wow, do I feel dumb! Here I was thinking the law is supposed the punish the guy whodunit.
Chewbacon
The Bible is like Wikipedia: written by a bunch of people and verifiable by questionable sources.
yeah, one of those would likely find their target better.
- His mom
P.S. ZING!
That was the case about 4-5 years ago, but since then the standard has moved to WPA/WPA2.
I remember those days, every AT&T 2WIRE used WEP, and I'm sure that although they were likely
the most prominent, they weren't alone.
In one of the myriad BitTorrent downloading cases against individuals, one plaintiff's law firm thought they'd be clever and insert a 'negligence' claim, saying that the defendant was negligent in failing to supervise his roommate's use of his WiFi access.
That's not exactly right. The firm put in the negligence claim because (for some unknown reason), they thought that the copyright act only provided for liability of a direct infringer (the roommate), and not anyone else who contributed to the infringement (the defendant WiFi owner):
Liberty nevertheless argues that its negligence claim asserted here is not preempted because, as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer.
That's incorrect, as the judge notes:
The right that Liberty seeks to vindicate by its state law negligence claim – the imposition of liability on one who knowingly contributes to a direct infringement by another – already is protected by the Copyright Act under the doctrine of contributory infringement.
Furthermore, they're not actually alleging negligence at all - from footnote 17:
It bears emphasis that, despite the “negligence” label, this complaint alleges that Tabora knowingly facilitated and actively participated in Whetstone’s alleged infringement. This case does not involve a concededly ignorant but allegedly careless defendant.
Basically, the firm wanted to go after both roommates and, due to an inept misunderstanding of copyright, alleged (i) direct infringement by the roommate, and (ii) "knowing and active" negligence by the WiFi owner. The judge properly said, "hey, dolts, number 2 isn't negligence, it's contributory infringement, so the state law negligence claims are wrong and preempted anyway."
The defendant isn't off scot free... The plaintiffs have a contributory infringement complaint that still names him.
I don't really see why it's odd. For the law, it's about identifying the user.
An ISP has a record to identify a customer. Depending on how strictly they manage they network, they should be able to say with some confidence that
"the account that accessed X belonged to Bob Smith of 123 Summer St" (notice I do say "account belonging to Bob", and not Bob himself)
Whereas Bob, who has open wifi, generally cannot say with confidence that
"the access from my account at 12:30pm on July 9 was done by my neighbour Sam"
Unless Bob has some strong measures in place to define access: strong encryption, VPN, a well-configured login portal, etc, then the buck has still stopped at his network.
The standards for contributory infringement were established in MGM v Grokster. To be secondarily liable the defendant must have encouraged or induced the infringement. Mere 'negligence' would not suffice.
Ray Beckerman +5 Insightful
The standards for contributory infringement were established in MGM v Grokster. To be secondarily liable the defendant must have encouraged or induced the infringement. Mere 'negligence' would not suffice.
Absolutely right, but again, the plaintiff wasn't claiming "mere 'negligence'," but "encourage[ment] or induce[ment of] the infringement." As I posted, from footnote 17 in the decision (emphasis added):
It bears emphasis that, despite the “negligence” label, this complaint alleges that Tabora knowingly facilitated and actively participated in Whetstone’s alleged infringement. This case does not involve a concededly ignorant but allegedly careless defendant.
And, as the judge noted:
The right that Liberty seeks to vindicate... is protected by the Copyright Act under the doctrine of contributory infringement.
So, as noted, the summary isn't correct, because the plaintiff wasn't arguing what you claimed they were arguing.
If you don't mind my asking, what do you do for a living, and for whom?
It seems to me that every time I post something on slashdot, you're there trying to belittle it.
You know who I am. Who are you? Since you have an agenda, you should disclose what it is.
Ray Beckerman +5 Insightful
Frankly, your attempt to put words in my mouth, impugn my credibility, and suggest some ulterior motive (to the point of demanding to know who my employer is) is insulting, rude, and unprofessional. But I'm sure you didn't actually intend any of that and will apologize momentarily.
Mr. Theaetetus
1. Don't hold your breath.
2. I've come to the conclusion that you are a troll and/or shill, and will ignore you accordingly.
Ray Beckerman +5 Insightful
1. Don't hold your breath.
Frankly, I expected more from you. I've previously been called a Pollyanna, though.
2. I've come to the conclusion that you are a troll and/or shill, and will ignore you accordingly.
"Who do you work for?! You must be a copyright shill!"
"I'm a patent attorney, and you have an email with my full name and plenty of identifying details you could use to confirm that."
"I'm going to ignore all that and say that you're a copyright shill and a trolllllll!"
Ray, with all due respect, as one professional to another, grow the fark up.