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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?
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.
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.)
You would probably have to prove it was possible for one. Here it was pretty obvious that the roommate was a valid user of the provided WiFi.
You have the logs to back up your claim, right?
"I use a Mac because I'm just better than you are."
Ah, not BS, the judge dismissed the claim, which implies that in fact you can not sue someone for negligence simply for them using your hardware. Next time, might want to read the summary slightly more carefully.
"None can love freedom heartily, but good men; the rest love not freedom, but license." --John Milton
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).
"None can love freedom heartily, but good men; the rest love not freedom, but license." --John Milton
It is sure getting dangerous to be a parent these days.
"Prove all things; hold fast that which is good." [KJV: I Thessalonians 5:21]
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
That's the difference between a civil and criminal case, yes.
So by this logic, if they accuse you of murder and there is no body and you cleaned your house recently, then you should be convicted?
Set up a computer housekeeping schedule, document it (at least by blogging about it) and stick to it... If you're worried about a gestapo mp3 raid, you need to use encryption of your media volume anyway.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Of course, if it's a civil case, then the FBI would not be involved.
Assorted stuff I do sometimes: Lemuria.org
A teenage son is the ward of his parent -- so the parent is de-facto liable.
With roommates, there's no wardship, so intent must be proven (or disproven for civil suits).
One of the GOOD things to come out of criminalizing copyright is that the burden is now solidly on the accuser to provide proof instead of on the defendant to prove innocence.
if it has been wiped recently
Ah the wonders of hidden encrypted partitions and VM's...
---- Booth was a patriot ----
I received a tech support question from someone whose "wireless stopped working." I tried troubleshooting, and got blank looks when I started talking about a wireless router. Eventually I backed up and asked how they connected, discovered "I just look for wireless and pick one but now they all have passwords," and realized they'd just been using their neighbors' services without even knowing how any of it worked. After that it was easy enough to explain how to get a wireless router and solve the problem, but I chuckled to myself a bit as the story unfolded.
The Quirkz Handbook of Self-Improvement for People Who Are Already Pretty Okay
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?
Even if you didn't share wireless with anyone, does the IP address identify you? At best, it may identify a specific device, but does that identify you?
Sure would be nice if the law had more to do with facts....
They are written by politicians, facts aren't relevant.
Learn to love Alaska
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...
Bullshit. Only the Fucking Bastards of Idiocy can make up such bullshit... because they can get away with it.
In Germany, the judge tells you to GTFO and pay the defendant’s court costs, if you come up with only IP addresses.
No, you don't get a search warrant either.
And we don't have warrantless terrorism here, so the cops can't simply break and enter, terrorize you and steal your equipment.
Besides: Since when does a Excel sheet represent tamper-proof evidence of something happening? How do they plan on proving that they not just opened Excel, entered some people's IP addresses they found from running a file sharing program (becoming criminals by their own retarded definitions) and wrote popular movies/songs next to them, to then go fishing via racketeering cases? (Which is exactly how it happens in reality.)
Don't defend organized crime. Neither the content Mafia, nor the FBI. If you defend the enemies of the people... you *become* an enemy of the people.
They were STEALING bandwidth and you didn't report them?!
It seems the concept of 'preponderance of the evidence' has crept to a standard so low that it's difficult to continue seeing it as part of a justice system.
I doubt the ISP had a legal requirement to notify anyone about it (unlike an admittance of child porn for example).
Most people on Slashdot are fucking idiots.
That's right, they shouldn't, but we live in the real world where he who has the gold typically wins. It doesn't always play out that way, but it's the way to bet.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Amazing that someone would mod down a comment this innocuous.
"So by this logic, if they accuse you of murder and there is no body and you cleaned your house recently, then you should be convicted?
That's almost as ludicrous as the "Ip address is the same as fingerprint" argument."
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
What I like is the implication that I somehow know what content they're licensed to view so I can okay them torrenting it from my wifi.
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
sounds like they were buying their own bandwidth but just too dumb to figure out how to use it.
Snowden and Manning are heroes.
I recently installed a wireless router in my mother-in-law's house. For years she was using a neighbor's unsecured wireless signal. The kicker is, she didn't know she was using a neighbor's Internet connection. When she bought the home it was advertised as a "wireless capable" smart home. Her desktop computer was connected directly to a cable modem with Internet service she was paying for, and it is likely that her neighbor was on the same cable Internet system, so it would be a stretch to say she was getting anything for free, not even convenience. I found the wireless router in a box of electronics in the garage. It had come from her husband's practice and had been in the house about as long as she had lived there.
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.
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.
Yep, they were paying for wired internet, just hadn't realized they needed to do anything to make it wireless.
The Quirkz Handbook of Self-Improvement for People Who Are Already Pretty Okay
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.
'downloaded by a teenage son from the upstairs bedroom' - via the stairs perhaps?
http://www.acetonestudio.com
Ah, not BS, the judge dismissed the claim, which implies that in fact you can not sue someone for negligence simply for them using your hardware. Next time, might want to read the summary slightly more carefully.
Unfortunately, the summary's incorrect. Next time, the summary author might want to read the decision slightly more carefully. Specifically, the judge dismissed the negligence claims because the complaint was actually alleging "knowing and active" contributory infringement, not negligence at all (see footnote 17), and that the legal right involved - protection from contributory infringement - was in the copyright act and thus preempts state claims.
And, most importantly to what you and the GP were discussing, the defendant is still in the suit. Although the negligence claim against the defendant was (properly) dropped, there is also a contributory infringement claim against him.
Why this is important, however, is that the elements the plaintiff needs to show for contributory infringement are different than the ones they needed to show for negligence. Dropping the negligence claim will require them to prove that "knowing and active" bit that they wouldn't have had to do for negligence.
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.