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No, You Can't Claim 'Negligence' In a Copyright Case 108

Posted by Soulskill
from the inspect-every-bit-manually dept.
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."
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No, You Can't Claim 'Negligence' In a Copyright Case

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  • Negligence (Score:5, Insightful)

    by jbuk (1581659) on Tuesday July 10, 2012 @05:22PM (#40607521)
    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?
    • by wierd_w (1375923)

      Just wait. Instead of "neglicence" charges, it will be "failure to do due dilligence" or some other shit, which attempts to push the burden of enforcement through loaded charges.

    • Re:Negligence (Score:5, Interesting)

      by Oxford_Comma_Lover (1679530) on Tuesday July 10, 2012 @05:49PM (#40607847)

      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.

      • 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.

        (Emphasis mine)
        Interesting, but would you agree that there's a substantive difference between an open hotspot and giving out the key to a secured one (whether or not one knows what's being downloaded)?

        • Re:Negligence (Score:4, Insightful)

          by Em Adespoton (792954) <slashdotonly.1.adespoton@spamgourmet.com> on Tuesday July 10, 2012 @06:37PM (#40608319) Homepage Journal

          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.

        • by spazdor (902907)

          This is really no different from the perceived responsibility of ISPs to police their users for copyright violations. The owner of the wifi hotspot is treated as the 'ISP' for anyone using it. It's a dumb argument at both levels.

      • by yotto (590067) on Tuesday July 10, 2012 @06:43PM (#40608389) Homepage

        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.

        • by psiclops (1011105)

          i had sex with your mom last night, it usually doesn't involve nukes.

          • by Chrisq (894406)

            i had sex with your mom last night, it usually doesn't involve nukes.

            But I probably have a negligence claim against the old folks home for letting you in.

      • Re:Negligence (Score:5, Interesting)

        by Artifakt (700173) on Tuesday July 10, 2012 @07:44PM (#40608931)

        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.

        • No, generally courts won't allow double recovery--negligence would be a backup theory in case you didn't win the statutory damages, since you'd have to prove actual harm, which would be much smaller than statutory damages. But if you got them, they wouldn't let you also get negligence damages.

          The negligence/willfulness distinction I also think doesn't work, though it sounds intuitively good. IIRC, civil copyright uses willfulness to increase damages, but actually has strict liability. You're right that t

      • by Wakko Warner (324)

        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.

        #1 fails because there's no requirement, either written or implied, that a user's internet connection be secured.

        #2 fails because common sense.

      • by jrumney (197329)

        (1) a duty to keep one's internet connection secure

        This wasn't about keeping the internet connection secure, it was about spying on the authorized use by the defendant's roommate so the defendant could detect and prevent illegal activities. This "duty" that the copyright industry thinks we all have is probably in conflict with numerous privacy and wiretapping laws.

      • by pixr99 (560799)

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

        But occasionally it does?

      • by sjames (1099)

        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.

        There IS a problem with a negligence claim. The very idea that individuals are to be saddled with a duty to either snoop on their guests and neighbors or to jealously guard their AP and computers just to protect the MPAA is obscene.

    • Re: (Score:3, Interesting)

      by 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 (Score:5, Insightful)

      by lightknight (213164) on Tuesday July 10, 2012 @07:55PM (#40609005) Homepage

      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.

  • by Anonymous Coward

    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.

  • 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....
    • by 0racle (667029)
      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?
    • by Baloroth (2370816) on Tuesday July 10, 2012 @05:52PM (#40607863)

      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).

      • 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.

        • by Anonymous Coward

          That's the difference between a civil and criminal case, yes.

          • by pipedwho (1174327)

            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.

        • by drinkypoo (153816)

          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.

        • 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."

      • by Tom (822)

        Of course, if it's a civil case, then the FBI would not be involved.

      • by nurb432 (527695)

        if it has been wiped recently

        Ah the wonders of hidden encrypted partitions and VM's...

      • by Anonymous Coward

        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 o

    • by AK Marc (707885)

      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.

  • 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.
    • You fail at step 1: public performance doesn't fall under the same rules as private performance.

      Now, if the recipient of the phone call recorded the call, there'd be infringement. But first you'd have to figure out who they were.

    • by Asic Eng (193332)

      Well in this case it's not the RIAA driving the lawsuit, but a producer of gay porn. This [ajscloset.com] (definitely NSFW) is the title in question. Chances of a public performance are probably low.

    • by drkstr1 (2072368)
      Silly person, didn't you know it's illegal to play music in public? ...unless you've paid your vig to the ASCAP of course.
    • Oh, and don't forget to sue the people who dare to hum or whistle your melody into bankruptcy.
  • 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.
    • by weiserfireman (917228) on Tuesday July 10, 2012 @06:06PM (#40608007) Homepage

      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.

  • by saibot834 (1061528) on Tuesday July 10, 2012 @05:31PM (#40607645) Homepage

    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.)

    • by anubi (640541)

      This basically means you can't open up your WiFi to visitors and neighbours without spying on their Internet usage.

      I wonder how kindly businessmen trying to use the internet at the airport, hotel, or coffee shop for highly confidential business communications will take to knowingly being snooped.

      I have set up several wireless hotspots for local businesses. At no time did I ever even try to snoop or log connections - its way too much trouble, zero profit, and 100% chance of irritating the customer to do

      • by arose (644256)
        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.
      • by djlowe (41723) *

        I wonder how kindly businessmen trying to use the internet at the airport, hotel, or coffee shop for highly confidential business communications will take to knowingly being snooped.

        Well, I'd hope that those businessmen are using VPN connections for those highly confidential business communications.

        At my company, while we offer email access to our users' Exchange mailboxes via OWA and Outlook Anywhere, both are encrypted.

        Access to internal company servers where work product is stored can only be accomplis

      • by nedlohs (1335013)

        If you aren't an idiot you would assume you are being snooped on.

        Hence encryption is enabled on VPNs, ssh is used instead of telnet, https instead of http for anything that matters, SSL/TLS is used for imap and smtp, etc, etc.

    • by Anonymous Coward

      That is interesting. That would suggest that Tor node operators in Germany are liabilities. I have to wonder how they define ISP. To me an ISP is someone who provides Internet access to others. The size is retentive to that so a "hotspot operator" is an ISP, a person sharing his Internet connection is an ISP, etc. The only exception might be if you deny access to the Internet. Only then would you not be an ISP and the reason for this is because the Internet in any kind of restricted fashion is not the Inter

    • by Anonymous Coward

      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.

    • 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"

      U

  • 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.
    • by Shompol (1690084)

      adult film industry files these suits expecting people to settle

      We should boycott AFI for doing this sort of crap! Who is with me?

  • by GSloop (165220)

    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 mor

    • by bobbied (2522392)

      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.

  • I knew that this sort of ruling would eventually happen.

    Doesn't bode well for people who have their wifi cracked ..

  • by kilodelta (843627) on Tuesday July 10, 2012 @07:07PM (#40608609) Homepage
    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 that "negligence" is exactly what the French 3-strikes HADOPI law is based on (Article 6 11): http://www.laquadrature.net/wiki/HADOPI_translation [laquadrature.net] 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...
    • by manu0601 (2221348)
      Perhaps it is just that entertainment industry have an agenda to promote anti-negligence laws worldwide, and they missed the point that they do not have it (yet) in the US
  • 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.
  • 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, allege

    • 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.
      • 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.
      • 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.

        I'm a patent attorney. My interest in copyright is purely academic - in fact, I wrote a well received, award winning scholarly article on copyright infringement and damages which you have a copy of, if you dig through your email. :)

        No offense is intended*, and I don't mean to belittle your posts**. As you'll note, I'm disagreeing with the substance of what you've said - here, specifically, the characterization of the plaintiff's argument, as well as the judge's response and the policy implications of it.

        • The complaint [beckermanlegal.com] (PDF) included a 3rd claim for "negligence". Complaint, paragraphs 47 to 58.

          The defendant moved to dismiss the 3rd claim for "negligence" on preemption grounds [blogspot.com] and the EFF filed an amicus curiae brief supporting the request for dismissal of the negligence claim on preemption grounds.

          Thereafter the Judge granted the motion to dismiss the 3rd claim for negligence on preemption grounds [blogspot.com].

          You can say whatever you want, but the documents don't lie.

          By suggesting that this didn't really happen, you
          • By suggesting that this didn't really happen, you are misleading anyone who cares to accept you as credible, and your motivations for doing so are curious indeed.

            From my original post:

            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."

            Ray, begging your pardon, but I've never "suggest[ed] that this didn't really happen", and there is nothing misleading in my post. I mean, honestly - how could I possibly "suggest that this didn't really happen" while simultaneously discussing why it happened? Causality much?

            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 y

            • 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.

              • 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.

I'd rather just believe that it's done by little elves running around.

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