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.
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.
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.