NEW YORK—The Electronic Frontier Foundation has filed a motion to submit an amicus brief in a copyright infringement case filed in federal court in New York by Corbin Fisher parent Liberty Media Holdings against two male roommates accused of scheming to illegally pirate a Corbin Fisher film titled Down on the Farm using a BitTorrent file-sharing network.
The EFF, which routinely disparages plaintiffs (and their counsel) who sue end-users by referring to them as copyright or porn "trolls," filed the friend-of-the-court brief to argue against the charge by the plaintiff that the roommate whose name is on the Wi-Fi contract is as guilty as the roommate who actually downloaded the movies because he knew the man was engaged in illegal activity.
The case, Liberty Media v Tabora, is the plaintiff's second crack at the two men, Cary Tabora and Schuyler Whetstone. The first lawsuit was filed in California by Corbin Fisher counsel Marc Randazza in March 2011, but was dismissed by the court in January 2012 for lack of personal jurisdiction. The second action was filed this March in New York, with new local counsel representing the plaintiff.
According to the complaint filed by plaintiff's attorney Andrew Miltenberg, Tabora, who had the internet service in his name, "placed a telephone call to the attorneys then acting as counsel for Plaintiff" when he was first served with the complaint in the first action brought against the two men.
"During a series of phone calls between Tabora and Plaintiff's prior counsel," the complaint states, "Tabora expressly stated that his then-roommate, whom he identified as Schulyer Whetstone ... was the party who illegally downloaded and subsequently distributed the Motion Picture.
"In an attempt to divert liability from himself," the complaint continues, "Tabora expressly stated that he had full knowledge that Whetstone regularly used Tabora's Internet connection for the criminal purpose of pirating copyrighted content, yet Tabora continued to permit Whetstone to use his Internet connection for this purpose. In fact, Tabora stated emphatically, 'I was negligent' in allowing Whetstone to use his Internet connection. Further, Tabora stated that he was aware that Mr. Whetstone was using his Internet connection to illegally pirate content, and that he was aware that it would eventually cause legal problems for him."
These admissions form the basis of the claim by Liberty that "Tabora knew of Whetstone's activities, knew that these acts were illegal, admitted that had the right and ability to prevent Whetstone from taking these actions, but declined to exercise that right and ability. In other words, he saw a duty, saw that he breached that duty, and that he knew both of the duty and of the breach."
The same claim is reiterated more broadly later in the complaint in the section outlining the third cause of action, Negligence Against Defendant Tabora. "Internet subscribers have a duty to prevent others from using their own Internet connections for illegal purposes," the complaint states. "This duty is heightened when the subscriber has actual knowledge that others are using their connection for illegal purposes. It is heightened still further when the illegal purpose is a federal crime, as was Tabora's willful copyright infringement.
"Once Tabora learned that Whetstone was using his Internet connection for the wholesale, unlicensed and willful distribution of the Plaintiff's works," the argument continues, "Tabora had a specific and heightened duty to prevent Whetstone from using his Internet connection for this illegal and criminal purpose. This heightened duty was higher still since, on information and belief, Tabora had actual knowledge that Whetstone was causing damage to the Plaintiff.
"Tabora's breach of his duty caused the Plaintiff to incur damages," the section concludes. "Had Tabora stopped allowing Whetstone to use his Internet connection for illegal purposes, the Plaintiff would not have lost sales. As a result of Tabora' s negligence, the Plaintiff lost at least 840 total sales, at the rate of at least $60 per sale."
The EFF, in its amicus brief, takes direct aim at the negligence claim, which it argues has no basis in law. Specifically, EFF claims that "LMH’s theory of liability cannot withstand even passing scrutiny. No matter how artfully pled, LMH’s claim sounds in, and is preempted by, copyright law. And as decades of copyright jurisprudence and legislation make clear, that body of law does not recognize a cause of action based on mere negligence. Accordingly, no court has ever found, or could ever find, that anyone has violated copyright law simply because another user of his or her Internet connection did so."
But EFF also argues that the attempt by Liberty to hold Tabora equally responsible for the alleged actions of his roommate will have a negative impact far beyond just this case. In a press release issued Friday, it stated, "If LMH is successful with this latest ploy, Internet users across the country would suffer. Every day, cities, cafes, libraries, schools, and individuals operate open Wi-Fi networks, sharing their connection with the public. This is a valuable public service, part of federal policy to promote universal, convenient access to the Internet, and also promotes public safety. But if Wi-Fi providers could be held responsible for users' behavior, public access to the Internet would be sharply reduced because of liability fears."
Responded to a request for comment, Randazza said of the argument, "The EFF is lying. The Tabora case has nothing to do with open Wi-Fi networks whatsoever. In this case, the allegation is that Mr. Tabora knew that his roommate, Whetstone, was using his internet connection to steal copyrighted materials and to redistribute them. This has nothing to do with some unwitting open wireless network operator. The very narrow question in this case is, 'if you know that you're giving someone the instrumentality of a crime, shouldn't you be held at least partially responsible?'"
AVN replied to Randazza asking if the sentence from the complaint—"Internet subscribers have a duty to prevent others from using their own Internet connections for illegal purposes."—does not imply a larger obligation on the part of all subscribers, and not just those with knowledge of infringement.
Randazza replied, "If the complaint consisted of that one line, and that one line only, then I suppose that the EFF's reading would be correct. However, if you review the whole thing, it is clear that the only thing that is being alleged here is that you have a responsibility to stop known illegal conduct."
That may well put to rest the claim by EFF, as expressed by staff attorney Mitch Stoltz, that the negligence claim is "a ridiculous attempt at expanding copyright law so it's easier for copyright trolls to extract more money from more innocent people," but of course the final word on that will reside with presiding judge Lewis A. Kaplan.
The Liberty Media v Tabora complaint can be accessed here.
The EFF amicus brief can be accessed here.
