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."

Comments

Negligence

[jbuk]

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?

Re:Negligence

[Em Adespoton]

It's the difference between putting a photocopier on the street outside your house and putting a photocopier in a library. In one, you have no oversight and no idea of the intended use; in the other, you have some assumption as to intended use and have set guidelines, but still have no reasonable expectation of control over use.

Re:Negligence

[lightknight]

Called it. All those ISPs who failed to fight for their 'common carrier' status in courts, who bent over for the content companies, who agreed to implement all sorts of filtering and copyright notification schemes, who gave out their client's names, are, no doubt, about to see the other side of the equation. Once a precedent is set in court for 'negligence to prevent copyright infringement,' the copyright holders will take that precedent, and being a massive shakedown on ISPs; because you know, as well as I do, that ISPs (*cough* Verizon *cough* Comcast *cough*) have deep pockets, and there isn't a lawyer alive who would pass up an opportunity to sue them for a few million, either from the copyright owner's side ("Your client infringed, you could have stopped it; Give us your wallet!") or from the end-user's side ("He / she was just a naive teenager doing what his / her friends were doing; But {ISP} had the duty to prevent that, and failed! Money, money, money!").

Check my old posts, I mentioned a similar setup months ago. The ISPs walked into this one, with the smarter ones protecting their clients. If they're smart, they'll wise up, band together, and fight any / all cases of a similar nature in the future.

Re:Negligence

[shentino]

For there to be negligence, there must first be a duty of care to even be breached in the first place.

Re:So am I understanding this right?

[Baloroth]

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....

Actually you can. It's a pretty major issue law enforcement (such as the FBI) are becoming aware of. Of course, they will probably issue a warrant to examine your PC, and if it has been wiped recently you probably won't be winning the case (assuming it is a civil case, they don't need to prove beyond a doubt you did it, just that you probably did).