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

[Oxford_Comma_Lover]

There's nothing intrinsically wrong with a negligence claim here, it would just be a hard sell. Negligence arises when someone has a duty, they breach the duty, and the breach is the cause of a forseeable harm to the plaintiff.

It doesn't have to involve nukes, and usually it doesn't.

So there would be two big hurdles for a plaintiff here: (1) a duty to keep one's internet connection secure and (2) the idea that there has actually been harm.

The judge bought an argument that the copyright law created a way for people to recover for the harm involved here, so the copyright statute overrules the ability to file a common-law negligence action. (Statutes trump common law). It's not a bad argument, although it's also not a surefire-win. (And as an on-point district court decision, the ruling is persuasive, but not binding on other courts.)

Disclaimer: IANAL, this isn't legal advice, laws vary by state, and you and I are both partially wrong.

Re:Negligence

[Anonymous Coward]

The elements of the tort of negligence are:
1) a duty of care
2) breach of that duty
3) direct cause
4) harm

You argument is basically that the defendant did not owe a duty of care to the copyright holders, which would be a pretty easy argument to make.

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

[yotto]

a negligence claim ... doesn't have to involve nukes, and usually it doesn't.

[citation needed]

/Actually, I don't need one for that. Seems pretty likely.
//In fact, I bet you could add "it usually doesn't involve nukes" after almost every statement humans have ever made and it'd be true.

Re:Negligence

[Artifakt]

I'm not a lawyer either, so we are two people going outside our respective professional competencies, but with that said, I suspect there IS something intrinisically wrong with a negligence claim here. The idea is that copyright law now implements statutory damages, and the statute says the standard for going from basic damages to more significant damages (the shift from $30,000 to $150,000 per incident), is "willfulness". Since negligence in most civil matters entalis a possible increase to the penalties as well, letting the plaintiff increase damages by the means spelled out in the statute and then increase them again by means of 'negligence', a cause outside the statute, is the problem.

        The defendant committed one tort, by one single action, and allowing a claim of negligence would be treating that one tort as two seperate violations subject to different laws for the same single action, two sets of penalties, and since there are some types of copyright violation subject to criminal charges, even possible double jeopardy. (if a prosecutor decided to bring criminal charges based on one statute where the other didn't justify them, that might be double jeopardy, i.m.h.o., even where they didn't bring charges for both statutes. Certainly it would be where two sets of criminal charges were brought. Double jeopardy doesn't exactly extend to civil suits (you can normally refile unless a case is dismissed with prejudice, but in practice, you'd better have something new to litigate) and anyway, once even part of copyright law started addressing criminal penalties, just where double jeoplardy doctrine protects is something that will probably have to go all the way to the Supreme court someday.). You really can't build a court case over someone simply being negligent - you charge them with negligence only as part of a specific tort (or a crime, like negligent homicide, where negligence is sometimes actually spelled out as part of the crime). Can you imagine accusing someone of negligent (blank)?

      The big content owners wanted copyright law extended more into criminal law, they wanted statutory penalties instead of having to show actual damages, and they got those things. It seems in this case someone wants the old laws back, but they would like to use pieces of both old and new law as they see fit to combine them. The judge was quite right to strike this down. It also shows some copyright claimants are simply not to be satisfied.

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.

In Germany, there is 'negligence'

[saibot834]

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.)

Re:In Germany, there is 'negligence'

[arose]

They shouldn't take it kindly at all, it's gross negligence on the part of their IT staff to not set up secure communications channels. It's not the fault of the airports, hotels or coffee shops. If you are connecting to essentially random open hotspots that might, or might not, be provided by whatever establishment and not encrypting your connections you are at high risk, Germany or elsewhere.

Re:What about ISPs

[Baloroth]

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.

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).

Re:This ruling is in defense of the individual

[weiserfireman]

It would seem to say that the owner of the WiFi, doesn't have any fiduciary responsibility to Copyright Owners to prevent Copyright Infringement by others.

This would be the correct decision. Copyright law places the full responsibility for Copyright Enforcement on the Copyright Owners.

RIIAA and MPAA were happy with this until Internet File Sharing came along and their enforcement costs went up. They are looking for one Judge to slip and give them precedence to use in other courts. They will keep trying this tactic.

Re:I had my wireless router hacked

[Quirkz]

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.

Re:Huh?

[bobbied]

No, this was not nuanced... There where two arguments being made. 1. You can't sue me because you don't have a copyright registered on that title and 2. You can't sue me for negligence because I didn't stop my roommate from doing it. The judge agreed with the person who was providing the internet connection on both arguments.

I'm betting that the copyright registration will be corrected and the roommate will be then held accountable, if this hasn't happened already.

The more interesting aspect is this:

[kilodelta]

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.

The sad thing is...

[BlueTemplar]

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...

Re:So am I understanding this right?

[pipedwho]

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.