Judge finds Randazza’s “negligence theory” unconvincing: motion to dismiss is granted, tugboat is sunken

by unicorntugboat

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.


…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”


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32 responses to ‘Judge finds Randazza’s “negligence theory” unconvincing: motion to dismiss is granted, tugboat is sunken

    And I really really enjoyed the fact the Judge was less than pleased with the slipshod way the paperwork was prepared. Once you establish the long name, you can then use the short form in the paperwork. But as these cases were never meant to actually stand up in court it didn’t matter… until someone pointed out the filing was deficient.

  2. Great post unicorntugboat! Hope Mr. Fraga sees that his pro se instinct that the emperor has no clothes has been vindicated.

    This will be an oftentimes cited determination as other judges use it to smash copycat copyright trolls’ claims of Doe negligence.

  3. Great article! This is a really big blow to the negligence claim/charge. If this was succesful, it would have given Randazza and the other bozos a “foot in the door” to try and expand the negligence claim to cover a wider group of Does. Instead the judge slammed the door and said go away silly Troll.

    DTD 🙂

  4. This was definitely a good article. Randazza has been trying the negligence angle for some time, and it is good to see the argument get shot down once again. The funny thing about this one is that the judge proactively decided to shut down the case. No games in his court. 😉

  5. So is this all the beginning of the end? Is it time to polish up the resume and beginning shopping it around with all the excellent credentials and experience they have amassed? Or rather time to go and sign up for food stamps?

      • TAC! The best compliment to your contributions is…. [drumroll]

        Your comment I’m replying to is 10,000th on this site!

        I noticed in the morning that it is close to 10K and decided to reply to the 10,000th comment no matter who makes it.

        Not that the best of your comments, but there is no such thing as coincidence 🙂

  6. the nicest thing about this is that this was a negligence claim where the isp subscriber KNEW his roomate was d/ling illegally, and still negligence did not apply. that bodes well for the people who did not know that their account was being abused.

  7. I’m surprised the big fat ego hasn’t stopped in to hurl a few personal insults, since he doesn’t have much to spin with this outcome.

    • Today xbiz.com ran this story and received a “no comment” from Randazza as to whether he was going to try to recast his FAILED lawsuit against Tabora.

      • BTW-having had the misfortune of working alongside politicos, it is SOP to release bad news on a Saturday when few are paying attention. Unfortunately for Trolls we watch your every move every day.

    • They can refile as much as they want. It doesn’t change the fact that the movie is called “Down on the Farm” and the registered it under the wrong name. Idiots

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