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Jul 20 2012

NY Federal Court Rules Copyright Trolls Cannot Use “Negligence” Theory

In another major blow to copyright lawsuits filed by the porn industry, Judge Lewis Kaplan of the Southern District of NY, ruled that porn distributor Liberty Media could not rely on a theory of negligence in its copyright infringement case against a NY man named Cary Tabora. The complaint alleged that Tabora’s roommate, Schuyler Whetstone, had repeatedly pirated pornographic movies using the popular BitTorrent site. The complaint alleged that Whetstone downloaded a movie called “Corbin Fisher’s Down on the Farm” illegally and sought damages from Tabora and Whetstone. The porn industry has been filing hundreds of lawsuits across the country that begin by them sending subpoenas to Internet Providers demanding they produce the names and addresses of folks who own the ISP addresses where the porn is being downloaded from.

The judge quickly dismissed the Federal Copyright claim because the defendants showed that the copyright registration attached to the complaint was for a film called “Corbin Fisher’s Amateur College Men Down on the Farm.” Because this was a different film than the one allegedly pirated, and since the plaintiff did not apparently have a registration for the film named in the complaint, the copyright claim was dismissed. This shows the importance of demanding proof of the claim and fighting back against these “trolling” lawsuits. These cases are brought in the hope that you will be so embarrassed to be named in a complaint alleging you illegally downloaded porn that you will just pay their exorbitant settlement demands to hush it all up quickly. But this is not the important part of the decision.

Liberty tried to fight in support its second claim – a State law negligence claim that argued that Tabora should be responsible for negligently allowing Whetstone to use his internet connection to pirate pornography. The porn trolls have added this cause of action to combat the increasingly larger number of cases where courts have refused to issue the subpoenas saying that just because a movie was downloaded from a particular ISP does not mean that the ISP owner is the person who downloaded it. Due to wireless modems, courts have ruled that anyone could have gotten onto the system and done the download. I wrote about this previously on this blog.

Courts Denounce Copyright Lawsuits Based Solely On IP Address

But now this decision knocks out that argument. The court held that the Federal Copyright Act preempts any State law claim regarding the infringement. [For our non-lawyers out there, preemption basically means that if the Federal government has regulated a particular field (like copyright), State law cannot regulate that field]. The court stated the following:

Section 301 of the Copyright Act, with exceptions not here relevant, preempts:
“all legal or equitable rights that are equivalent to any of the exclusive rights within
the general scope of copyright as specified by section 106 in works of authorship that
are fixed in a tangible medium of expression and come within the subject matter of
copyright as specified by sections 102 and 103 . . . .”

A state law cause of action therefore is preempted where “(1) the particular work to which the claim
is being applied falls within the type of works protected by the Copyright Act under 17 U.S.C. §§
102 and 103, and (2) the claim seeks to vindicate legal or equitable rights that are equivalent to one
of the bundle[s] of exclusive rights already protected by copyright law.”

This is a major defeat for the porn-trolling industry and hopefully enough folks will start realizing that when they receive these extortionate settlement demand letters they should not ignore them, but instead get counsel to examine if the movie was registered properly and then move for dismissal if the plaintiff tries to sue them under a negligence theory. This defendant was supported by the Electronic Frontier Foundation (EFF) which filed a supportive brief with the court. EFF continues to do excellent work in this area in trying to keep the trolls at bay.

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