27 July 2012 Update
Thank you Unicorntugboat for posting this information. True to form, Troll Miltenberg filed a response to Judge Kaplan’s dismissal of the Tabora/Whetstone complaint (1:12-cv-02234) on the last possible day (25 Jul 12). LeaveAmendComplaint_02234(NY) The judge allowed Plaintiff to amend the complaint regarding – “…the direct and contributory infringement claims to assert registration of a claim to copyright to the motion picture that allegedly was infringed.”
As the judge didn’t state the complaint could be amended regarding the ‘negligence’ claim, the case against Tabora will hopefully be ending soon.
Troll Miltenberg told the court that they plan to amend the typographical error concerning the title of the movie in this case. It appears this is just being done to ensure the default judgment against Whetstone is not dismissed as well. There is no evidence against Tabora for direct infringement and the contributory infringement claim is a reach. Note: Troll Miltenberg could try to make the claim that Tabora knew of this activity and assisted Whetstone in some way materially.
Contributory infringement requires (1) knowledge of the infringing activity and (2) a material contribution — actual assistance or inducement – to the alleged infringement.
I assume the judge will allow the troll to amend the complaint, so we will have to wait and see what changes they make to it. The best the Troll could hope for is to make some sort of slimy deal with Whetstone to testify against Tabora. Barring any new information, the Troll will likely ride this out in hopes of wearing down Tabora into settling. At this time it seems like an unlikely outcome.
As far as the ‘negligence’ claim – it is still sunk. Now I wouldn’t doubt that at the same time the new complaint is filed, the Troll also submits some sort of reconsideration on the negligence claim dismissal.
First I want to say great post on http://www.fightcopyrighttrolls.com on this topic (Sunk tugboat), by unicorntugbot (love the name). Please keep on posting articles. Much of what I’m writing about is covered in the unicorntugboat article, but I wanted to cover some other aspects in addition.
This case is interesting for a couple of reasons. First, the case deals with ‘Negligence’ issue, but not from an ‘Open WiFi’ perspective. This is a negligence claim with some specific facts that goes beyond the simple statement of “somebody used my Internet connection and I didn’t know what they were doing.” In this situation the defendant found out what his roommate was doing and didn’t act to prevent him from accessing the Internet. Second, it highlights how much trouble you can get into by talking to the Trolls.
In this case, the Cary Tabora was the initial defendant accused of illegally downloading “Corbin Fisher’s Down on the Farm,” Liberty Media Holding (LMH), LLC. The case was 11-cv-00651, in the Southern District of CA. Docket In the CA case, the Troll was Marc Randazza. The CA case against Tabora was dismissed without prejudice on 4 Jan 12, due to the court not having personal jurisdiction over Tabora. Dismiss_NoDefault_00651(CA)
On 21 Mar 12, LMH refiled the case in NY, 1:12-cv-02234. Complaint_02234(NY) Docket The Trolls are Andrew T. Miltenberg and Marco A. Santori, Nesenoff & Miltenberg, L.L.P. This is essentially a Marc Randazza case and you can clearly see that in the filings. LMH claimed Tabora evaded service and were finally able to locate him in NY. They eventually served Tabora with a summons and complaint. NOTE: Randazza did contact Tabora on 11 Apr 12, even while knowing he was already represented by an attorney in the previous CA case of the same subject matter – 11-cv-00651. In the compliant, Tabora and Whetstone are severally and jointly liable for copyright infringement (direct and contributory) and a claim of negligence is only against Tabora. Note: Whetstone failed to respond to the summons and was found to be in default.
After receiving the summons, Tabora made a mistake of actually calling and trying to explain to the Troll that it was his roommate, Schuyler Whetstone, who downloaded/shared the movie in question. According to the Troll, Tabora admitted in a telephone conversation that he knew Whetstone used his Internet connection to illegally download/share copyright protected movies. Tabora told the Troll that he was negligent in allowing Whetstone to do this. Tabora did eventually retain an attorney and answered the complaint.
On 15 Jun 12, Tabora filed a motion to dismiss the complaint. Tabora_MTD_02234(NY) The motion to dismiss was based on two grounds. 1) That LMH had a filed the claim with the wrong title of the movie in question (Corbin Fisher’s Down on the Farm v. Corbin Fisher, Amateur College Men; Down on the Farm). 2) The State Negligence claim was preempted by Federal Copyright Law.
On 27 Jun 12, the EFF filed an Amicus Curiae, in support of Tabora. EFF_AmicusCuriae_02234(NY) Funny that the Troll asks the judge to disregard the Amicus Curiae because, “… the irrelevant hysteria that it is. This case is not about Starbucks, nor about airports. This case is about a specific set of facts.” (page 5 of LMH_Opp_MTD_02234(NY))
In the Trolls’ opposition to Tabora’s Motion to Dismiss, the main claim as to why the negligence claim is valid is Tabora had a duty to secure his Internet connection from Whetstone because he had knowledge that Whetstone was using it to illegally download/share copyright protected movies. The Troll does make a nice quote that can be used by others facing the generic negligence claim from LMH/Randazza (Page 6 of LMH Opposition) –
To be clear, Plaintiff does not argue that there is duty upon all Internet account holders to police and prevent criminal activity on their Internet connection.
The Troll makes the argument that the negligence claim is not preempted by Copyright law and can stand on its own.
The Troll even tried to use the ISP agreement Tabora had with Road Runner Internet (Time Warner) as a basis for showing why there was a duty on Tabora’s part. (Page 14 of LMH Opposition) The agreement (actually it is the “Acceptable Use POLICY”) with the ISP essentially states that illegal activity is not authorized. What I find particularly laughable is the Troll claims the user agreement is not
… wholly, or even partially, to protect the ISP’s. Rather they are to protect third parties, such as content creators, who are harmed by ISP subscribers.
What a load of crap. Acceptable use policies, just like end-user agreements are designed and written to keep the company out of legal trouble. It is called “CYA” or “Cover Your Ass.” Please review this document as it gives great insight into what arguments the trolls will try to use in this area.
Opinion of the Court
Well the judge reviewed all the available information and on 9 Jul 12, issued a memorandum opinion. Tabora_Dism2ndtime_02234(NY) The judge stated the following for the negligence claim.
The negligence claim suffers from at least two problems, each independently fatal to its survival. It is necessary, however, to discuss only the first.
Section 301 of the Copyright Act, with exceptions not here relevant, preempts: “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 . . . .
Funny the judge didn’t even bother to mention what was the second fatal flaw in Plaintiff’s argument. The judge granted Tabora’s motion to dismiss, but will allow Plaintiff to request leave to amend the complaint no later than 25 Jul 12. It will be interesting to see what (if anything) the troll does with this case. As this will be the second dismissal of Tabora for this claim, the case is essentially over IAW FRCP 41 (a)(1)(B):
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
This particular negligence claim from the Troll was a very specific and tailored attempt to get around the preemptive nature of Federal Copyright law. It was a good case for them to test the waters and I’m happy to see that the judge didn’t buy the silver-tongue pleadings of the Troll. By losing the negligence claim (even after Tabora made those foolish comments to Randazza), the general negligence claim made against those who run open WiFi Internet connections or when authorized users (guests) abuse a connection, isn’t going to float. Yes good people, the ‘tugboat’ just sunk – again.
P.S. Steele, Duffy, Gibbs, and the rest of the Prenda squad… Take note that the negligence claim has failed. Nice try copying Randazza. Gibbs, I believe you should be closing down your case against Mr. Hatfiled and seeing if you can sneak away. The time is coming to stop and go back to your previous fields.