No, You Can't Claim 'Negligence' In a Copyright Case 108
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."
In Germany, there is 'negligence' (Score:5, Interesting)
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 [wikipedia.org]) for copyright infringement.)
Re:Negligence (Score:5, Interesting)
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 (Score:3, Interesting)
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:This ruling is in defense of the individual (Score:5, Interesting)
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 (Score:5, Interesting)
Re:Negligence (Score:5, Interesting)
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.