Thursday, October 4, 2012

Copyright Trolling: AF Holdings Names Another Doe

It looks like the Copyright Trolls are trying to make good on their threats to start suing individuals who refuse to settle up. Earlier, Daniel G. Ruggiero named Robert Liberatore in a suit filed in the Eastern District of Pennsylvania. Now, Ruggiero has filed another suit, also in Pennsylvania, this time against Edward Huynh.

Update on weaknesses of copyright troll cases
The two complaints are nearly identical, and both make the same claims of "civil conspiracy" and "negligence." As I mentioned before, those claims are frivolous. The details of why are fairly academic, but they are real. Bottom line: State law claims are preempted by federal law, which means the claims of copyright infringement are the only ones that can be brought for that conduct. Trying to use a negligence claim to overcome the weaknesses of its copyright claim is an end run around the substantial hurdles presented by the elements of vicarious copyright liability.

Basically, it's hard to prove vicarious liability for copyright infringement. You can't make it easier by just saying "well maybe you didn't infringe, but you were negligent." It doesn't work that way. If you file a copyright case, then you have to prove a copyright case. Simple as that. There is no such thing as "lesser included offenses" in copyright infringement.

Also, to prove negligence, you have to show that the accused owed some duty of care to the accuser. In other words, if I don't have any reason to protect your stuff, then I'm not negligent if your stuff gets lost or stolen. At least one Court threw out a negligence claim for exactly the reason that the accuser (the troll) couldn't show that the accused (the Doe) had any reason to try and prevent the copyright infringement. Exactly. It's not my job to protect someone's copyrights from someone else.

These negligence-based theories are not new: FightCopyrightTrolls reported on a very similar case (IO Group v. Does 1-244*) about a year ago.

* I should mention that this case is a good example of why it may not be a good idea to completely ignore the trolls as two of the defendants in that case got hit with a $20,000 default judgment (see below) for just ignoring the case.