Negligence Claims Concerning ISP Subscriber Responsibility

Recently we have had a couple of items come up that I feel is worthy of a post.  I will try to get to them as soon as possible.  The topic requiring my immediate attention concerns what I have heard from a couple of the newer Does.  Theses Does are under the belief that because they are the ISP subscriber, they are responsible for all activity that occurs on their network/Internet Connection. 

This belief is in relation to copyright infringement law suits in which their IP address was identified.  These Does state this “claim” came from Plaintiff’s personnel and a defense attorney.  Now hearing this from Plaintiff’s personnel does not surprise me.  Hearing it from a defense attorney (unknown if the attorney was knowledgeable/experienced in these cases) was a bit disheartening.  What the Troll/Plaintiff (and some defense attorneys) are telling people is you are legally responsible because of your “Negligence” in managing your Internet connection.  Don’t believe this!  Here is part of a settlement letter from Troll Scott Kannandy.   Settlement Letter

FAQ_Kannady1

Now I will warn people that simply claiming that someone else used your Internet connection to do this is no guarantee a Troll will leave you alone.  I will also warn against giving any false statements to the Troll claiming this – it could come back to haunt you.  As a general rule the Trolls do not care who actually infringed, just that someone pays them the settlement demand.  Remember that this is a money-making business model, not an effort to stop piracy or right a wrong.

Here is what I previously wrote concerning “Negligence.”

The three main things that will kill a claim of negligence are the Elements of Negligence, the Copyright Act, and the Communications Decency Act.  Also please see the Newbie/Noob page covering negligence.

Elements of Negligence – All the following elements are required to be deemed negligent.

  • Legal duty to exercise reasonable care to the injured party or general public.  Unless you have a contract or agreement with the Plaintiff OR a law dictates specific reasonable care (securing your Internet connection, etc.), this element is missing.  PERIOD.
  • Failure to exercise reasonable care caused by an action OR inaction.  This is where the Plaintiff will try to say you were at fault because you ran the Internet connection “Open” (no password) or you didn’t monitor what was occurring on your network.  Unless you are a serious IT geek (vast majority are not), nobody monitors the activity of their Internet connection beyond “do I have Internet access,” or that “the connection has slowed down.”  Running a WiFi Internet connection “Open” is not a crime and the choice to do so is not a “failure to exercise reasonable care.”  Even Malibu Media’s head Troll (Keith Lipscomb) states that WiFi Internet connection hacking or someone using an Open WiFi to commit these actions is not widespread.  If it isn’t a widespread activity, how can there be a failure to exercise reasonable care???  Your action/inaction is not then unreasonable.
  • Some sort of harm results by the negligent conduct (proximately) – actual damages.  This is one are the Plaintiff can usually show.  If people pirate Plaintiff’s works, there is some loss of revenue.  Note: Each instance of piracy does not equal a loss of a sale.  Some people will watch a movie for free, but would never purchase the item.  Example: I have no problem watching “Assault on Wall Street” via Netflix (approx. $8 a month), but I sure would not pay $8 dollars to see it in the same movie in the theater or purchase the DVD.
  • Additional factor – were the actual damages “reasonably foreseeable” at the time of the negligence?  There is no way an ISP subscriber is going to reasonably foresee the damage (loss of sales) to Plaintiff because they didn’t know what a third-party was doing on their Internet connection.

The Copyright Act

This one is really easy.  The Copyright Act preempts the negligence claim (section 301).  PERIOD.

(a) On and after January 1, 1978, 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, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

So far any claim of “copyright infringement,” Plaintiff has to use this statute and no other law/statute is applicable.  The Troll/Plaintiff love this Act, as it gives them the possibility of a high judgment award ($150K per infringement), but it has nothing to say about negligence.  With this preemption, the claim of negligence is moot.

The Communications Decency Act

From the title of this Act, it doesn’t sound like it would be applicable.  You would be wrong.  We even have a California court that agrees with this.   Boston Motion to Dismiss

The judge in the Boston case highlighted the fact that the CDA  was very clear (sections (c) (1) & (e) (3)).   A “provider” or a “user” of an interactive computer service (i.e. the Internet connection) will not be treated as the publisher (i.e. the copyright infringer) for actions taken by a third-party (i.e. unknown user of the internet connection or a guest).  It also stated that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”  This means that no claim of negligence (failing to secure your Internet connection OR monitor the activity that happens on it) can be imposed on the ISP subscriber.

Where this information comes to bear is in defeating the Troll claim that you are liable no matter what the circumstances are.  Now I must caution people that if a family member (minor-child or adult-child) was responsible, the Troll may simply switch to them if given the chance.  If it ever gets to this stage (unlikely for most IMO), the Troll probably knows who lives in the residence, as well as has a general idea of financial situation of the family.  The Trolls do not want to target the 21-year-old adult child living at home getting paid near minimum wage.  He can’t pay the settlement; he has no assets – but his parents might pay if junior’s future is threatened.

DieTrollDie :)  “The hard part about playing chicken is knowin’ when to flinch.

Fcat1

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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9 Responses to Negligence Claims Concerning ISP Subscriber Responsibility

  1. that anonymous coward says:

    OHAI DTD.
    Part of the negligence claim surviving is the fault of the “Six Strikes” program.
    In one of those little scraps of paper that are stuffed into your paper bill, was a change to the terms of the contract between the customer and the ISP (who is a Six Strikes member). Don’t worry if you didn’t see it, you weren’t meant to and as many of them are the only game in town, you can’t vote with your wallet.

    Basically the terms of your contract with them were updated to say that if your paying for the account, you are responsible for everything that happens on the account. This wording change was merely put in place so that attempting to contest Six Strikes Notices would be harder. They just want to send a notice, scare the account holder, and move on.

    A troll might point you at these terms in your contract and claim that is the basis of you owing them money. Corporate “law making” still doesn’t make it the law of the land. Six Strikes notices are not legal notices, just part of an “educational” program run by the cartels.

    Knowing is half the battle…

  2. DTD is right.

    As a defense attorney I always inform folks facing these lawsuits that just being the ISP subscriber does NOT make you llegally liable.

    In general terms, to be liable as the ISP subscriber you would have to know the actual infringer was doing it and told him or her to keep doing it and “stick it to the man.” That said, this is not legal advice and you should speak to an attorney experienced in this area of law for a more nuanced discussion and to review the appellate cases in your federal appellate circuit.

  3. Keyser says:

    AnonCoward was correct. Under Verizon’s terms of service, if your name is on the account, YOU are responsible for what happens during it’s use. Go to http://www.verizon.com/about/terms/ and then click on ‘Online/Broadband Internet Agreements’ then you’ll see ‘Verizon Online Consumer Service Agreements and Policies’. Click on it and a PDF downloads.

    Go to page 3, #4 Authorized User, account use, and responsibilities: Look at #2…

    • DieTrollDie says:

      The agreement between the ISP and the ISP subscriber are just that – It is not an agreement that involves the Plaintiff’s in any way. That in NO way means that an ISP subscriber is deemed the infringer just because his/her name is on the account. Now they may try to point to this (agreement) in a trial, but it is a very weak point to argue. BUT how many of these cases reach that point??? I would say less than 1%. Even then, what judge or jury is going to think? How many people (Vast majority IMO) just accept the terms without ever reading them (much less understand them). AND for many people there is no other option with selecting an ISP – choices are very limited. Plus, if this was such a “Slam Dunk” fact for these cases, they would bring more people to trial.

      DTD :)

      • Keyser says:

        I would agree with you that it is just an agreement, but I could see them using it to prove a point. It still doesn’t say who did the actual downloading, but all it takes is one trial to validate it and a judge to go along with it. Most would never go this far in an actual trial but it’s of note.

      • DieTrollDie says:

        IMO the only real value is in trying to convince a Doe to settle. The simple fact that the Copyright Act preempts any negligence issue is a simple case killer.

        DTD :)

  4. Pingback: Elf-Man LLC – Defendant Claims Plaintiff Seeded Movie (And Other Things!), case # 2:13-cv-00395 (WA) | DieTrollDie

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