On 7/9/2012, in what we can hope will become the tugboat heard ’round the world, Judge Lewis A. Kaplan summarily dismissed the claim of negligence against Cary Tabora that was brought by Liberty Media Holdings, LLC. in the Southern District of New York.

For some background on the case, it started in the normal troll way with Marc “Tugboat” Randazza filing a lawsuit in the Southern District of California back in March 2011 against the defendant, alleging that defendant shared LMH’s copyrighted gay porno flick, Down on the Farm, on BitTorrent. However, this lawsuit never got off the ground. While Tabora’s co-defendant was nowhere to be found, Tabora fought and won two different motions to dismiss (lack of personal jurisdiction — Tabora resides in New York).

Liberty Media Holdings also took some normal troll steps to motion for entry of a default judgement against Schyler Whetstone, which were also summarily dismissed. I think that the analysis provided by the court is very strong and I was glad to see the Judge take steps to prevent this abuse:

A district court “has an affirmative duty” to determine whether it has personal jurisdiction over the defendant before entering a default judgment. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). In considering whether to enter a default judgment, a court may dismiss an action sua sponte for lack of personal jurisdiction.

In its motion for default judgment, Plaintiff contends that this Court has personal jurisdiction over Defendant Whetstone and makes the same arguments in support of this contention that Plaintiff made with respect to Defendant Tabora. [Doc. No. 27 at 1.] As stated above, Plaintiff has failed to make a prima showing of jurisdictional facts establishing that the second and third elements of the Calder-effects test are met in this case.

This dismissal occured on 1/4/2012, however this was not the end of the case. LMH continued to try to pursue Mr. Tabora in his local jurisdiction. On 3/27/2012 a complaint was filed by LMH in SDNY again against Tabora and Whetstone. Since Mr. Randazza is not licensed to practice Law in New York, LMH obtained a local counsel — Nesenoff & Miltenberg LLP. With new information in their pocket as a result of Tabora’s innocent attempt at trying to talk to the troll and declare innocenece, LMH included a new cause of action, negligence. This is where the tugboat comes in.

Marc Randazza declared in a comment to a recent TechDirt article:

The negligence theory is that if T knows that W is committing a crime with his account, and still lets him use is, then T is negligent.

The Tugboat case to quote dates back to 1932 (yes, 1932, welcome to the Internet age!):

Two tugboats, one of which was The T.J. Hooper, were towing barges. During a storm, the barges sunk and their cargoes were lost. The owners of the cargo sued the barge owners, which in turn sued the tugboat owners. They claimed that the tug operators were negligent because they failed to equip their tugs with radios that would have warned them of the bad weather.

I know, your head is saying the same thing as mine at this point: what does this have to do with Internet file sharing? Well let’s again go to Mr. Randazza himself quoted from TechDirt:

The TJ Hooper case stands for the proposition that it is the province of the court to recognize duties in negligence cases — even new ones that have not existed before.
You focus on the legal rule, not the boat. If you focus on the boat, you’ll be confused. If you focus on the legal rule, you’ll understand.

Ah, once again I was caught staring at the boat. Luckily, Judge Kaplan was focusing on the law and not the boat (which makes me wonder what Mr. Randazza was focused on). As with the first case, Tabora was not going to sit back and get trolled. Through counsel, he filed a motion to dismiss the complaint on various counts:

1. Failure to state a claim (due to invalid copyright registration);
2. The Copyright Act Preempts Plaintiff’s Negligence Claim.

The EFF also stepped in and filed and Amicus Curiae Brief in support or Tabora.

LMH filed a 20-page response in opposition to the motion to dismiss that was all over the map. Plantiff’s counsel went so far to as admit:

With respect to the duty, the Plantiff acknowledges that it is asking this Court to recognize a duty that has never been facutally before a court in the past.

They even claimed that because his ISP had its terms of service in place to protect third parties, and since Tabora violated these TOS, the duty to LMH was in place. I can see the tugboat through the fog now.

Just two business days after plantiff filed its opposition to the motion to dismiss, Judge Kaplan issued a memoradum opinion rejecting Plantiff’s claims and granted Tabora’s motion to dismiss. As to LMH’s negligence claim, the Judge wrote:

The negligence claim suffers from at least two problems, each independently fatal to its survival. It is necessary, however, to discuss only the first.

and…

…as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer. In light of the preceding discussion and the doctrine of contributory infringement — which Liberty’s memorandum ignores entirely — that position is untenable.

The Judge also found the the misnamed copyright registration was and issue and that in order to proceed on any claim of direct or contributory copyright infringement, they must filed and amended complaint by 7/25/2012 to assert any claim.

Let’s hope this decision is heard loud and clear in California where similar cases are on process against defendants.

Randazza’s “negligence theory”

• Marc Randazza: 2010 Are You Guilty If Pirates Use Your Internet? Lawyer Says YES
• Nicholas Ranallo: 2010 Are You Guilty If Pirates Use Your Internet? Lawyer Says NO
• Nicholas Ranallo: Open WiFi and Pirates: Why Copyright Negligence Won’t Fly

Coverage

• Technology & Marketing Law Blog: No Negligence Claim for Infringement via Shared Internet Connection (Preempted by Copyright Act) – Liberty Media v. Tabora by Venkat Balasubramani.
• Recording Industry vs The People: Negligence claim in BitTorrent download case dismissed on preemption grounds by Ray Beckerman.
• Slyck: A Pox on your BitTorrent Tort Action! by Thomas Mennecke
• TechDirt: Court Says Negligence Claim For Allowing Downloading On Your WiFi Is ‘Untenable’ by Mike Masnick.
• DieTrollDie: Two Fatal Flaws Kill The ‘Tugboat’, 1:12-cv-02234 (NY), Liberty Media Holding v. Cary Tabora.
• EFF|Deeplinks: Victory for Open WiFi: Judge Rejects Copyright Troll’s Bogus “Negligence” Theory by Mitch Stoltz.
• Xbiz: Negligence Claims Dismissed in Porn Piracy Case by Rhett Pardon