September 6, 2012 | By Mitch Stoltz

Copyright Trolls' Bogus "Negligence" Theory Thrown Out Of Court Again

Judges on both coasts of the U.S. have now rejected one of the copyright trolls' favorite tactics - suing an Internet subscriber for "negligence" when someone else allegedly downloaded a movie illegally. Judge Phyllis Hamilton of the Northern California federal court threw out a negligence suit by a Caribbean holding company against a Californian, Joshua Hatfield. The company, AF Holdings, had alleged that Mr. Hatfield allowed unnamed third parties to use his Internet connection to download a pornographic movie using BitTorrent, infringing copyright. Judge Hamilton ruled that Hatfield was not responsible for the actions of strangers. She joins Judge Kaplan of the Southern District of New York, who reached the same conclusions in another case in July.

The "negligence" strategy had three fatal flaws, according to the court. First, an Internet subscriber like Mr. Hatfield has no legal duty to police his Internet connection to protect copyright owners like AF Holdings. Second, even if AF had a valid "negligence" claim against Mr. Hatfield under state personal injury law, federal copyright law would override it. This is called preemption. And finally, even if copyright law didn't trump a negligence claim, Section 230 of the federal Communications Decency Act probably would.

Copyright owner representatives, from the Recording Industry Association of America and the Motion Picture Association of America to the fleet of troll lawyers filing shakedown suits on behalf of porn studios, don't like the protections that federal law gives to Internet providers and their subscribers who allow others to use their network connections. Though the protections are far from perfect, the laws, including Section 230 of the CDA, Section 512 of the DMCA, and the "secondary liability" principles laid down by the Supreme Court, give Internet providers and their subscribers some peace of mind. Opening your Internet connection to the public is a way of strengthening communities and helping innovation, as we've written in this blog and in court papers. This week's ruling, along with the Tabora ruling in New York, send a strong judicial message that copyright owners can't use legal tricks to bypass the law's protections for Internet access points.

There are still many open cases in the federal courts where copyright owners are trying to use this bogus legal theory. People caught up in these cases should be able to use the Hatfield and Tabora rulings to get these suits dismissed quickly, without high legal fees. They may even be able to get their legal fees paid by the plaintiff, as "copyright negligence" claims move ever closer to being declared a frivolous and harassing misuse of the legal system. If you've been targeted by a copyright troll, visit this page for resources.

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