[x-pubpol] US: Victory for Open WiFi: Judge Rejects Copyright Troll's Bogus "Negligence" Theory

[Joly MacFie]

https://www.eff.org/deeplinks/2012/07/judge-copyright-troll-cant-bully-internet-subscriber-bogus-legal-theory

Copyright trolls lost one of their knobby clubs this week. Judge Lewis
Kaplan of the U.S. district court in Manhattan ruled that the owner of an
Internet connection cannot be found liable for "negligence" simply because
another person uses his wifi connection to commit copyright infringement --
even if he knows about it. After this decision, copyright trolls should
find it harder to coerce settlement payments from innocent people for the
commonplace act of sharing an Internet connection.

In this case, Liberty Media Holdings v.
Tabora<https://www.eff.org/cases/liberty-media-holdings-v-tabora>,
a well-known copyright troll (also known as Patrick Collins) sued a Comcast
Internet subscriber for negligence based on his housemate's alleged
BitTorrent downloads. The owner of the Internet connection allegedly
confessed to the troll that he knew his housemate was doing some infringing
downloads.

Copyright law has a complex set of rules and cases dealing with when and
how someone can be held responsible for another person's infringement.
These "secondary liability" doctrines come up frequently in suits against
electronics makers like Dish
Networks<https://www.eff.org/deeplinks/2012/05/tv-networks-say-youre-breaking-law-when-you-skip-commercials>
and
Internet sites like blogs and user-generated content forums. As regular
Deeplinks readers know, these laws are far from perfect. But they do
contain strong protections for Internet providers and Internet services -
especially Section 512 of the Digital Millennium Copyright Act.

Liberty Media and its attorneys tried to avoid even dealing with federal
law's secondary liability doctrines by bringing a claim based on
negligence, which is a state law. A negligence claim requires only that a
person disregard a legal duty, causing injury to someone. Liberty's
attorney has made this argument
before<https://www.eff.org/deeplinks/2011/08/open-wifi-and-copyright-liability-setting-record>.
But when federal and state laws conflict, the Constitution says federal law
trumps ("preempts") the state law. In the Liberty Media case, the defendant
and EFF argued for preemption. EFF also
explained<https://www.eff.org/press/releases/porn-troll-wants-wi-fi-providers-pay-others-illegal-downloads>
why
allowing "copyright negligence" lawsuits would devastate the open Wi-Fi
movement that EFF is
building<https://www.eff.org/deeplinks/2011/04/open-wireless-movement>.
After less than a week of deliberation, Judge Kaplan dismissed Liberty's
negligence claim from the outset, reasoning that "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."

Liberty can re-file the case as a secondary liability case under federal
law, but Judge Kaplan suggested that they won't get too far with that
strategy, either. Merely providing a tool, like Internet access, that is
used for infringement doesn't put you at fault if, as here, the tool is
"capable of substantial noninfringing uses." Also, in many cases, the
provider will be protected by the DMCA's safe harbors.

Other prolific trolls are pursuing "copyright negligence" claims in other
courts, and regularly make this legal claim in their settlement demand
letters. We're hoping that other courts follow Judge Kaplan, sending a
clear message that the federal laws protecting Internet providers can't be
bypassed with artful pleading and that using bogus legal arguments to
coerce settlements from innocent Internet subscribers won't be tolerated.
 Attached Documents
  Order Dismissing Liberty Media v. Tabora
Complaint<https://www.eff.org/sites/default/files/Tabora%20Dismissal%20Order.pdf>
-- 
---------------------------------------------------------------
Joly MacFie  218 565 9365 Skype:punkcast
WWWhatsup NYC - http://wwwhatsup.com
 http://pinstand.com - http://punkcast.com
 VP (Admin) - ISOC-NY - http://isoc-ny.org
--------------------------------------------------------------
-
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.isoc-ny.org/pipermail/x-pubpol-isoc-ny.org/attachments/20120720/480d2287/attachment-0001.htm>