December 20, 2012 | By Mitch Stoltz

Tough Times for Trolls and their "Copyright Negligence" Scheme

Despite at least five smackdowns by federal judges, copyright trolls are still accusing Internet subscribers of "negligently" allowing someone else to download porn films without paying. Last week, subpoena defense attorney Morgan Pietz fought back by asking the Northern California federal courts to put all of the open "negligence" cases filed by a prolific troll firm in front of a single judge - a judge who already ruled that the "negligence" theory is bogus.

In August 2011, we said "there is no negligence theory of copyright liability. Zip, none, nada."  In 2012, at least six federal judges in California, New York, and Hawaii agreed with us, throwing out or blocking cases based on this theory. Not a single judge that we know of has let the "copyright negligence" or "wifi negligence" theory go forward when a defendant has challenged it. Copyright law provides ways to go after people who contribute to infringement in a substantial way - something far more than sharing an Internet subscription with a housemate or running an open Wi-Fi router. Helping others to access the Internet is something that the law favors and protects. No law forces Internet providers, large or small, to be copyright cops. At least six judges have confirmed that using state personal injury law to bypass those protections is simply a non-starter.

Yet at least one attorney - Brett Gibbs, an affiliate of the Prenda Law Firm1 - is still trying to use "negligence" accusations to coerce settlements from Internet subscribers. Mr. Gibbs still has about 30 open cases in Northern California alone, assigned to numerous judges, where he is seeking damages based on the very same, thoroughly discredited "negligence" theory. It's likely that Prenda is using the threat of these suits to demand settlements of $2,000-$5,000 from Internet subscribers, without evidence that the subscribers themselves downloaded anything. Needless to say, using a false legal theory as leverage for settlement demands is despicable.

Given this situation, we're happy that subpoena defense attorney Morgan Pietz has filed a motion to bring all of the "copyright negligence" cases in Northern California together in front of Judge Phyllis Hamilton, who already dismissed one such claim. Pietz pointed out that all of the cases are practically identical - only the IP addresses and names of the defendants are different.

Enhancing the efforts of Mr. Pietz and other subpoena defense attorneys, EFF is working to inform judges and ISPs about the farcical "copyright negligence" suits and other troll tactics. The fight to protect Internet users against shakedowns will go on, and we're hopeful that this tactic will soon be history.

If you have received a notice from your ISP that your identity may be divulged based on an accusation of copyright infringement, or if a plaintiff's lawyer has contacted you directly, we have resources that may help you.

  • 1. The attorneys affiliated with Prenda used to be called "Steele Hansmeier," and they appear to be in the process of changing their name yet again, to "Anti-Piracy Law Group."

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