Copyright Trolls Get Creative, And the Courts Get Wise
by Tim Bukher
Failing to catch defendant file downloaders on copyright infringement claims due to the fact that it is so difficult to prove that someone who owns an Internet connection was necessarily that someone who used it to download files, AF Holdings tried to assert an additional claim against local area network owners: Specifically, for negligence arising out of failure to secure their LAN.
See AF Holdings, LLC v. Doe, 2012 WL 3835102 (N.D. Cal., September 4, 2012):
[Plaintiff alleges] that Hatfield failed to secure access to his residential Internet connection, thereby making it possible for the “Doe” defendant to engage in the unlawful downloading.
The likely reality in this “Plaintiff v. Doe plus one” lawsuit is that AF Holdings suspects that the LAN owner, Hatfield, and the Doe infringer are one and the same. However, due to the recent spate of such cases being dismissed given the difficulty of showing that a LAN owner is necessarily the infringer, AF Holdings took the novel approach of suing “Doe” for infringement and adding Hatfield on for negligence. This way, if the negligence cause of action moves forward, AF Holdings would then be able to proceed into discovery and potentially prove that Hatfield and Doe are the same person.
The Court was not having it. Falling back on basic Torts principals, the Court ruled that a LAN owner would need to have some sort of special relationship with a copyright author (in this case the plaintiff) in order to have an “affirmative duty” to secure his Internet network.
No affirmative duty means no negligence, so back to the drawing board for copyright plaintiffs.
Tell us what do you think.
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