Negligence – So Easy Even a Copyright Troll Can Understand it

Based on some recent nonsensical filings, I thought I would go over the “Negligence” issue and what some Trolls are claiming it means.  All of the Trolls have used the negligence issue to try and destroy any possible defense of “I ran an “open” WiFi or that “a neighbor abused my Internet connection.”    John Steele / Prenda Law have a standard hand-out they send to the Does along with their settlement demand letter stating that an “open” WiFi is no defense.  Prenda Law has also recently used a complaint similar to a Mark Randazza one in which negligence is a core complaint against the defendants – Big Bad Wolf Post.

Nonsense Documents

memo_law1 – Prenda sent this fine piece of work to Seth Abrahams (3:12-cv-01006). Notice how they don’t even put Prenda Law on it or even list who authored it.  Completely biased extrajudicial propaganda designed to make FUD – piss poor work guys.

Negligence_00262(HI) – Court order (30 Jan 12), 1:11-cv-00262, Liberty Media Holdings, LLC, v. Hawaii members of swarm …, where the judge dismissed the Negligence claim because there was NO legal duty –

The Court concludes that the allegations in the FAC are not sufficient to state a claim for negligence for a couple reasons. First, nowhere in the FAC does Plaintiff assert any specific legal duty in connection with its negligence claim.  Further, Plaintiff has not cited, nor has the Court found, any case law with analogous facts from which the Court could conclude that the Defendants owed Plaintiff a general duty to secure their internet connection.

Prenda_Ltr – Standard Prenda Settlement letter with parts claiming that running an open WiFi is no defense.

Negligence_Count_02049(CA) – Negligence Count against defendant Hatfield, case 3:12-cv-02049.  I love section 59., where Gibbs states that defendant Hatfield “had a duty to secure his Internet connection.”  See the “Duty” section below and tell me who is lying.

What Is Negligence

To start off, I will break down the definition of Negligence according to Nolo’s Plain-English Law Dictionary.

Failure to exercise the care toward others that a reasonable or prudent person would use in the same circumstances, or taking action that such a reasonable person would not, resulting in unintentional harm to another. Negligence forms a common basis for civil litigation, with plaintiffs suing for damages based on a variety of injuries, from physical or property damage to business errors and miscalculations. The injured party (plaintiff) must prove: 1) that the allegedly negligent defendant had a duty to the injured party or to the general public, 2) that the defendant’s action (or failure to act) was not what a reasonably prudent person would have done, and 3) that the damages were directly (“proximately”) caused by the negligence. An added factor in the formula for determining negligence is whether the damages were “reasonably foreseeable” at the time of the alleged carelessness.

General Break Down

    • Legal duty to exercise reasonable care to the injured party or general public.
    • Failure to exercise reasonable care caused by an action OR inaction
    • Some sort of harm results by the negligent conduct (proximately) – actual damages
    • Additional factor – were the actual damages “reasonably foreseeable” at the time of the negligence?

Imagery Break Down (So easy even a Troll can understand it)

Negligence in Securing a Home Internet Connection OR Monitoring What Occurs on your Internet Connection

Legal duty – There is no law (legal duty) requiring a person to secure their home Internet connection OR to monitor what users on this Internet connection do. This is pretty straight forward even for a Troll. “Show me the law!” Now I know the Trolls will say that the ISP service agreement requires a user to secure their Internet connection.  This may be correct OR it may be a suggestion to the subscriber (check the agreement).  Even if it does, there is a BIG difference between a “service agreement” and a “law” when we are talking about “duty.”   The service agreement is an administrative issue between the ISP and the subscriber – Not a law.

Reasonable Care – You would first need to show that it is “Unreasonable” to run your Internet connection “Open,” OR that it is unreasonable not to monitor what happens on your Internet connection.

Many people do run their Internet connection with security requiring a password to gain access. Just because the masses do, IT IS NOT unreasonable to run it open if YOU chose to.  If for your convenience you don’t mind someone possibly using your Internet connection, it is perfectly reasonable.  A well know security professional (Bruce Schneier) has a great 2008 article on this – My Open Wireless Network

Claiming that it is unreasonable for people not to monitor what transpires on their Internet connection is ridiculous. The only people I know in the IT realm that really seriously monitor their personnel Internet traffic at home are “Way Geek” and not the norm. I occasionally look at mine, but nothing adequate enough to catch any malicious activity on a regular basis. It isn’t worth the effort for 99.999% of the people out there to do such monitoring.

Proximately – This is an easy assessment based on the two previous points. The alleged negligence played NO part in the damages to the Plaintiff.  As there is NO legal duty and NO reasonable care requirement, Proximately is a moot point.

Reasonably Foreseeable – Again this is moot as there is no legal duty and no reasonable care requirement.  One thing I would like to suggest to anyone who has become a part of these cases, is to take a look at their network and make some possible changes to prevent any future activity.  This shows you are not ignoring the fact that someone used your Internet connection to illegally download/share a copyright protected movie AND you are taking steps to prevent it happening in the future.

Academic

These types of discussions are fun, but when it comes down to it, 99.9999% of these cases are never going to see a full trial, much less discovery and depositions.  The claims of negligence are made only to create FUD and get people to pay up.  We may see some negligence claims come up in the Wong, Abrahams, and Zwarycz, but it don’t believe much will come out in support of the Trolls.  Bottom line – There is NO legal duty.

DieTrollDie 🙂

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 – So Easy Even a Copyright Troll Can Understand it

  1. The Tod says:

    Well done DTD!

  2. Raul says:

    Ditto!
    What is nuts about this theory is the impleader ramifications. In negligence it means that a defendant can sue/ bring in a third party that may be ultimately responsible. So if I hit someone with my Toyota because the gas pedal malfunctioned and I get sued then I can implead Toyota into the lawsuit. In a troll lawsuit that would mean that a Doe could implead/sue the designor, manufacturer, distributor, seller and installer of the wireless router on the theory that those parties caused the Doe to come into possession of a defective (unsecured) wireless router.

  3. There were some interesting TorrentFreak articles some time back relating to this issue as well. Marc Randazza explains some of his arguments for negligence there. The only actual case law he’s able to cite is an old maritime case involving use of radios, which is just strange and a pretty weak argument. https://torrentfreak.com/are-you-guilty-if-pirates-use-your-internet-lawyer-says-yes-110806/
    Nicholas Ranallo, who has been involved in P2P case defense, cites several more relevant precedents in arguing otherwise https://torrentfreak.com/are-you-guilty-if-pirates-use-your-internet-lawyer-says-no-110806/

  4. B.T.D says:

    Again, good stuff! Clearly the trolls are becoming increasingly desperate. I guess the trolls figure if you throw enough spaghetti at the wall….. ?

    • that anonymous coward says:

      Actually they don’t give a damn if the allegation will hold up in court or not, they have a habit of never taking anyone to court unless they make an admission of guilt beyond their spiffy IP address targeting. This is about another charge on the list they can use to extract money to make it all go away.

      • Raul says:

        In the EDNY, Judge Brown in a footnote notes that such a negligence claim is absolute nonsense.

      • that anonymous coward says:

        The problem is outside of the work of DTD and SJD this isn’t something getting alot of coverage.
        The average person getting a shakedown letter, who understands the concept of looking at the filing will see it and be more scared. It lets them claim that damages for the “crime” of having an open wifi point is huge so a few thousand is nothing to avoid looking like a criminal.
        Its all about the fear factor, not if it will hold up.

    • Raul says:

      Agreed. It will be interesting to see how many of the 50 or so of the Lightspeed “test Does” show up looking for advice.

  5. Pingback: Negligence Claims Concerning ISP Subscriber Responsibility | DieTrollDie

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