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)
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…
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.
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 does. Funny, 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.