Rise of the Tugboat (Phantom Doe #5), AF Holdings LLC, v. John Doe and Josh Hatfield, 4:12-cv-02049 (CA)

Last night I had a good read and analysis of the following Prenda document (Troll Gibbs), PLAINTIFF AF HOLDING LLC’S OPPOSITION TO DEFENDANT HATFIELD’S MOTIONS TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT AND FOR A MORE DEFINITE STATEMENT, filed on 16 Jul 12.  It is best described as a shotgun blast attempt to salvage a case that is doomed to fail.  Links to my previous posts on this case are at the bottom of this article.   Opposition_Motion_02049(CA)   EX_A_Terms_02049(CA)   Proposed_Order_02049(CA)

Recap

This is one many Prenda cases in which they are trying to use the State ‘Negligence’ claim to get around the difficult issue of proving copyright infringement by the ISP subscriber.  Prenda knows a good percentage of the ISP subscribers they target are not the actual infringers.  It could be another member of the residence, neighbor, guest, or an unauthorized user of the Internet connection.  They do not know and really don’t want to spend the time and money to try to find out.  Remember this is a business model – making money is the goal.  Doing an investigation is costly and eats away at the profits.  The way they do this is by claiming that an ‘Unknown” person (John Doe) was the actual infringer and that the named person (Defendant Hatfield here) was negligent in allowing John Doe to use his Internet connection.  By combining these two under the “Joint and Severally” liable claim, they can go after Mr. Hatfield for negligence; if successful, he will get stuck with the copyright infringement portion.  Prenda then doesn’t have to prove that the John Doe or Mr. Hatfield infringed.  It then becomes Mr. Hatfield’s responsibility to do this and seek legal action against John Doe to make him pay his portion of the fine.  Pretty slick idea isn’t it – In a slimy bottom feeding lawyer way.  Note: not all lawyers are like this, but if the shoe fits…

Analysis

Prenda addresses the topics of Preemption, Statutory Immunity, and Duty regarding the negligence claim.  Note: there are many parts I haven’t dived deep into, so please post your comments.

Prior to these topics, Troll Gibbs opens with a response to Mr. Ranallo’s comments on the open WiFi network the Northern District of California court has for its patrons and how a successful negligence claim against Mr. Hatfield could possibly open the court up to a negligence claim.       

This District does not have a duty to prevent any-and-all copyright infringement from occurring via its public wi-fi system. Instead, it has a duty—as Mr. Hatfield does—to exercise reasonable care in administering its public wi-fi system, taking into account the potential harm that might foreseeably be inflicted on other people. For the record, this District recognizes its duty and has taken reasonable steps to prevent the misuse of its public wi-fi system. (See Northern District of California’s Court Wi-Fi Statement, attached hereto as Exhibit A) (stating in the Terms of Use that a user cannot participated in the “infringing, misappropriating or violating the intellectual property, publicity, privacy or other proprietary rights of any party.”)   

The part that Prenda fails to clearly point out that the “Duty” the court has stems from law.  The law is the Digital Millennium Copyright Act (DMCA).  Under the DMCA, the court is clearly acting as an Internet Service Provider (ISP).  Mr. Hatfield is not an ISP, and in fact obtains his Internet access from an ISP.  There is nothing to even say that Mr. Hatfield was running some sort of business offering Internet access.  There is no portion of the DMCA that states a residential network is an ISP – thus there is no legal “Duty.”  As the court has some duty, they have established “Terms of Use,” in which states unlawful activity is not authorized.  I assume they also have a “Warning Banner” Web page a user accessing the Open WiFi must “Accept” (click on the button) to proceed.  The warning banner commonly states the terms of use and tells a user where to access full details of the terms.  If you don’t accept the terms, you don’t get Internet access.  Prenda thinks this is “reasonable care” and if Mr. Hatfield had such a warning banner or terms of usage, they would not come after him (Yeah right!).  The problem is the VAST MAJORITY of small office/home WiFi Firewall/Routers do not have the ability to set such a warning banner.  Even if this was an option for home users, there is still no law requiring a residential network to take these steps.  NO DUTY. 

Troll Gibbs states it is “demonstrably false” to claim copyright holders do not name and serve defendants.  He goes on to list some cases in which they have done this.  Funny how Prenda had to tell one court in February 2012 that they had actually served “Zero” defendants since they started their operation.  Yes John, you have started to serve people.  Too little too late. 

Gibbs tells the court that going after copyright infringers is the “only possible response to the well-recognized digital infringement epidemic.”  He forgets to mention that the DMCA allows for copyright owners to issue take-down notice to the ISP.  I bet a majority (if not all) of the Prenda clients do not issue DMCA take-down notices.  They sure didn’t issue any in the Seth Abrahams case.  This is a simple and cost-effective way to make the ISPs take care of problem IP addresses.  The use of the take-down notices doesn’t prevent or hinder Plaintiff from filing copyright infringement case.      

Troll Gibbs tells the court that 17 U.S.C. § 301 does preempt all infringement claims not brought under the Copyright Act.  He then claims they are only going after Mr. Hatfield because he ran a residential network in a negligent way and not for any infringing activity.  Gibbs then makes the outlandish statement that “Plaintiff intends to identify and sue the individual who is responsible for the infringement.”    He tells the court that the claim against Mr. Hatfield has nothing to do with copyright infringement (direct or supplemental) only his negligence that led to the infringement.  Wait… now wouldn’t his actions in running the home network be “supplemental” to this infringement??? 

Troll Gibbs does try to address the Southern District of NY ruling on the Tabora case.  He first states that Judge Kaplan was wrong in his preemption view and that the case is significantly different from the one against Mr. Hatfield.  Troll Gibbs admits that the Copyright Act does not expressly render anyone liable for infringement activity of another, but claims that the Patent Act doesFunny, I thought this was a copyright matter? 

Gibbs tries to explain to the court that in Tabora, the defendant knew his roommate was infringing via his Internet connection and took no action to stop it.  In this case, Plaintiff claims Mr. Hatfield was either aware someone was using his network for improper purposes or was extremely careless in its operation.  I don’t know about you, but don’t the two underlined sections above mean the same thing?  As far as the “careless” network operation claim, that just leads back to the fact that there is NO LEGAL DUTY to society or special relationship to the Plaintiff.

In Section III., Troll Gibbs claims the negligent running of the home network by Mr. Hatfield amounted to “Misfeasance,” which is “comparable,” to the negligent operation of a motor vehicle. 

Like Defendant, a negligent driver is deemed negligent for his or her failures (e.g. failure to obey the speed limit, stop at a stoplight, maintain a safe trailing distance or otherwise observe traffic laws). Yet no one would seriously argue that a driver is not liable for negligence—absent a special relationship—in an accident caused by the driver’s failure obey the speed limit. This is because operating a motor vehicle in an unsafe manner is what creates a risk. The same is true with recklessly operating a computer network.

I can’t believe they actually have the balls to publish this crap.  First off, there is a legal duty for a person driving a vehicle to obey all the applicable LAWS.  There are laws covering Speeding, obeying traffic lights, and a multitude of other vehicle codes.  The part about the ‘risk” only arises after the duty is established.  There is NO LAW requiring a person to secure their Internet connection or monitor its usage, or even a SPECIAL RELATIONSHIP with Plaintiff in this matter.  In true Prenda drama, Gibbs further tries to liken copyright infringement from an Open Internet connection to a vehicle accident resulting in death. 

In the course of their pursuit of the disc jockey’s vehicle, two minors caused a traffic accident that resulted in one of their deaths. Id. at 45. The surviving wife and children of the decedent sued the radio station. Id. Affirming the jury’s finding of a duty of care, the Supreme Court of California held that the defendant’s reliance on cases involving the failure to prevent harm to another was misplaced. Id. at 49. The court reasoned that the radio station’s reckless operation of a contest—similar to Defendant’s reckless operation of network—was a misfeasance rather that a nonfeasance. Id.   

Troll Gibbs then goes on to states that a “jury” should be the ones who make the determination of duty and if a particular risk was foreseeable.  I guess Prenda doesn’t want the court to rule on the duty issue.  There is the smell of fear in the air.

The Prenda drama continues,

The Internet will soon be the most significant medium of commerce, social interaction and media consumption. It would be absurd to conclude that the gatekeepers to the world’s largest market could never owe a duty to third parties.

“Gatekeepers,” since when is a residential network an Internet gateway?  This has already been laid down in law – The DMCA covers ISP and their responsibilities to third parties.  Residential users are not an ISP, even with an open Internet connection. 

The last portion of the opposition is simply Gibbs telling the court that the motion for a more definite statement (complaint) should not be ruled on until Mr. Hatfield’s motion to dismiss is addressed. 

Link to previous posts on this case

I can’t wait to see Mr. Ranallo’s response to this opposition.  I believe the tug boat will sink again, but then return to other courts that have yet to address the issue.  Prenda will shop the courts as usual and try to find a friendly venue. 

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
This entry was posted in Brett Gibbs, Prenda Law Inc. and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

12 Responses to Rise of the Tugboat (Phantom Doe #5), AF Holdings LLC, v. John Doe and Josh Hatfield, 4:12-cv-02049 (CA)

  1. Subscribe says:

    Subscribe

    Fun watching all the sinking ships lately as these cases drift into the desperate 😉

  2. doe nut says:

    my favorite is that they claim that the time-warner user agreement was put in place to protect third parties and not their own ass. seriously wtf?!?!?

  3. doecumb says:

    Let’s also remember that trolls have been reached this point of the argument by assuming the technology and all the steps that lead to identifying the IP address and account are perfect. Nothing is perfect.

    I could see on single case, if extortion was not involved, let the validity of the tech process be argued. But in hundreds of cases, no trial of substance has happened. The allegations against hundreds of thousands begin with some “secret” method that we’re supposed to accept. Trolls have had literally years to make the case of the accuracy of their tools and have NEVER done so. Logically, that’s a reason to quash every request for discovery.

  4. doecumb says:

    Troll crap would be comical if it weren’t so destructive.

    The opposition response filed by troll attorney working for porn purveyors, Brett L. Gibbs, demonstrates so-called lawyering that consists of making false comparisons and then discussing them in a confusing way to deceive.

    Why not carry the Gibbs argument further? Let’s go after the power utilities for negligence. Those power companies supply the ELECTRONS that power the routers through which there may have been infringement. Isn’t it the duty of utilities to know what all their electrons are doing?

    And let’s not stop there. Battery producers are negligent. Some routers may be connected to battery backup. Batteries support the potential supply of electrons. So batteries are also possibly supporting negligence.

    It doesn’t end there. How about those negligent copper and silicon mineral companies? They should know that some their molecules could be used in cables through which those malicious, possibly infringing electrons travel.

    • Anonymous says:

      Why do you think he doesn’t just make his point by discussing the actual issue at hand?

      If you need to make an analogy, it’s probably because your argument is too weak to be convincing if you just make your argument…

  5. Watching the fall says:

    “Instead, Plaintiff is seeking to impose liability on Defendant for
    the negligent maintenance of his residential network, which allowed a third-party to commit
    industrial-scale infringement of Plaintiff’s copyrighted works. (ECF No. 14.)” One user’s actions are industrial-scale! WTF!

    “recklessly operating a computer network” Is there some class you take in school that tells you how to responsibly operate a computer network? WTF! Most user’s get a self install kit with nicely color coded ports and cables and following the diagrams plug green wire into green port and the other end into phone/cable line. Making this sound like you need to be a computer engineer, install a content filtering proxy, logging all traffic to a syslog server and so on. I would doubt there is less than 1% of the general population that has the knowledge to do so. So this argument requires a very specialized knowledge. Even if you knew your room mate was downloading illegal items the most a reasonable person could do is request that the behavior stop. It is illogical to expect such a grand actions. Perhaps, he was to stand guard and watch every keystroke and mouse click as well!

    Defendants actions created a “metaphorical accident scene”. Now isn’t that just poetic? What a load of crap! Why is it that Starbucks isn’t doing the same? Why don’t you require them to install a content filtering proxy and log the MAC address of every computer using their free wi-fi spots. I mean you could subpoena their records and based on the MAC at least know the manufacturer of the computer’s network card, then subpoena the network card manufacturers to see to whom those cards were sold, then subpoena the computer manufacturers for the identify of the purchaser of that system. That is far more well thought out then just an IP address. This would at least tell you which Best Buy the infringer purchased the system from. 😉 In the case of a direct purchase from Dell or HP you might actually get the identity of the purchaser of the system. Oh, again, maybe flawed because maybe mommy and daddy bought the laptop for little junior to use at college, but mommy and daddy should still be on the hook, right? After all it is likely they have deeper pockets to rape and pillage.

    Trolls just keep on drifting off from reality more and more. Whatever they are smoking I want no part of it!

  6. Anon H says:

    Can you clarify how the Nor Cal District Court acted as an ISP? How was the Court not like an end consumer, only with a fancier router? It’s possible that the court also had no duty and issued TOS as an act of prevention rather than duty.

    • DieTrollDie says:

      First, the NDCA is an Internet Service Provider (ISP) because it provides a service (Internet Access) to a group of people in direct connection to its business of running the judicial system in its area. The service is free, but this is clearly not a residence and it is provided in relationship to the business of the court and its customers and staff. It was not just allowing friends and occasional visitors to use its Internet access as a residential user might. I can guarantee prior to providing this service, the NDCA staff lawyers reviewed this decision and decided to follow best practices and issued the TOS/User Agreement to follow the law and mitigate any future issues. You are partially right that it is an act of prevention (CYA), but it is driven by a duty in accordance with the DMCA. Now the court is a little different compared to a normal ISP or say a “Coffee House” providing Internet access, as it is part of the Federal GOV. So I doubt any copyright infringement claim against them would be allowed, but GOV agencies generally try to abide by the law as the rest of us are required.

      Here is a good link that explains who is a Service Provider according to the DMCA (http://www.ivanhoffman.com/provider.html). The NDCA was clearly a service provider because it provided “Transitory communications (meaning that the provider merely transmits, routs or provides connections for material coming through a system).

      DTD 🙂

  7. Pingback: Another Randazza Tugboat Prepares to Sink, Liberty Media Holding, LLC. V. John Doe and David Mastron, 2:12-cv-03425 | DieTrollDie

  8. Pingback: Phantom Doe #6, AF Holdings LLC, v. Josh Hatfield, 4:12-cv-02049 (CA) | DieTrollDie

  9. Pingback: End of the Prenda Phantom Doe (#7), AF Holdings LLC, v. Josh Hatfield, 4:12-cv-02049 (CA) | DieTrollDie

  10. Pingback: Night Of The Living Prenda (Phantom Doe #8), AF Holdings LLC, v. John Doe (Josh Hatfield), 4:12-cv-02049 (CA) | DieTrollDie

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s