I apologize for not getting this one out sooner, but there seemed to be something higher on my “to-do” each time. The Hatfield case is still going and the next hearing is set for 5 Sep 12. Hear_Cont_02049(CA)
Since Troll Gibbs last tried to salvage this case (Opposition_Motion_02049(CA)), 16 Jul 12, Mr. Ranallo/Mr. Hatfield fired back with a memorandum further detailing why Plaintiff’s first amended complaint should be dismissed. Hatfield_reply_02049(CA) The reasons for the dismissal are 1) Plaintiff’s Negligence Claim is Preempted; 2) Defendant is entitled to CDA §230 immunity, and 3) Defendant lacked a legal duty to protect Plaintiff from copyright infringement. The memorandum has two Exhibits – The Tabora Opinion and a Default Judgement Order for Felix Latimore. EX_A_Tabora_Opin_02049(CA) EX_B_Latimore_Order_02049(CA)
Negligence Claim Is Preempted
Troll Gibbs tries to persuade the court the negligence claim is not preempted by the Copyright Act because the Act does not specifically list “operating a residential network” (under §106) in its language.
Mr. Ranallo easily destroys this baseless claim by pointing out a Ninth Circuit test for Copyright preemption (Kodadek v. MTV Networks, Inc.).
A state law cause of action is preempted by the Copyright Act if two elements are present. First, the rights that a plaintiff asserts under state law must be “rights that are equivalent” to those protected by the Copyright Act. 17 U.S.C. § 301(a); 1 Nimmer, § 1.01[B] at 1-11. Second, the work involved must fall within the “subject matter” of the Copyright Act as set forth in 17 U.S.C. §§ 102 and 103. Id.
Gibbs also tries to persuade the court the Tabora Opinion was wrong and their claim against Mr. Hatfield is different. Gibbs claims that since they didn’t directly name him as an active participant in the infringement, only a negligent party to it, the negligence claim should survive. Mr. Ranallo points out that whether or not you directly state copyright infringement as a claim, the act Mr. Hatfield allegedly committed is clearly contributory copyright infringement. This means the negligence claim is preempted by the Copyright Act.
Mr. Ranallo states Plaintiff’s claims are clearly for copyright infringement and if the “negligence” claim is allowed to stand, it could allow an Internet Service Provide (ISP) to be sued for activities the ”Safe Harbor” provision of the DMCA clearly protects against. This clearly goes against the provisions of the DMCA and would cause a nightmare situation.
Communication Decency Act
The part I found interesting was the use of the Communication Decency Act (CDA) as an immunity - 47 U.S.C. § 230. When Mr. Ranallo brought this up in the initial motion to dismiss, Gibbs responded that the CDA immunity does not apply as this case did not deal with the dissemination of offensive material. If Gibbs based his response only on the title of the act, he would be right. Mr. Ranallo clearly does more research than Gibbs and was able to cite two cases where non-offense communication were granted CDA immunity (Gentry v. Ebay, Inc. & Doe v. MySpace)
Plaintiff has not argued that Defendant fails to meet the criteria for CDA immunity, as described in Defendant’s Motion to Dismiss. Instead, Plaintiff argues that Defendant is ineligible for protection because the CDA only provides liability for offensive communications. Unfortunately for Plaintiff, this distinction is explicitly contrary to the language of the statute, which grants immunity for “any information provided by another,” and further contradicted by existing interpretations of CDA immunity, as illustrated by Gentry and MySpace.
No Legal Duty
Gibbs attempts to tell the court their claims of negligence are for “nonfeasance,” not active malfeasance. Mr. Ranallo uses Plaintiff’s first amended complaint to point out Plaintiff is claiming Mr. Hatfield ”had a duty to take reasonable steps…” and “failed” take various actions to prevent the copyright infringement from occurring.
Mr. Ranallo also addresses the ridiculous claim that operating a residential computer network was the same as operation a motor vehicle.
This comparison is specious – indeed one should ask who is presently operating this Court’s wireless network. The answer, most certainly, is nobody. A wireless network is solely an intermediary between end users, much more akin to a highway than the “driver” in Plaintiff’s faulty analogy. Despite Plaintiff’s attempts to re-characterize the nature of its claims to survive the instant motion to dismiss, Plaintiff has not alleged any affirmative acts by Defendant. Plaintiff’s allegation, fairly read, is that Defendant failed to secure his internet connection, thereby allowing infringement. This allegation of nonfeasance will not support Defendant’s duty, absent a special relationship. No such special relationship exists here, and this court must therefore conclude that Defendant has no duty to protect Plaintiff from copyright infringement by another.
Hearing v. Settlement
I’m sure more settlement offers have been made to Plaintiff. I don’t expect Plaintiff to settle anytime prior to the 5 Sep 12, hearing. Prenda is in a bit of a “pickle,” here, as if hearing goes bad for them (more than likely), Mr. Hatfield is bound to be dismissed. Based on previous statements by Prenda, the settlement terms were not good for Plaintiff. Prenda may be hoping a dismissal will be less costly than what Mr.Ranallo/Mr. Hatfield are offering. Either way, the Prenda Tugboat is going to sink.