Not Securing Your Internet Access To Block Infringement Is ‘Negligence’?

Porn movie studio Liberty Media has been pretty aggressive lately in its attempt to jump on the bandwagon trying to get file sharers to pay up by either threatening them with lawsuits or suing them. The latest move by the firm is to file a similar lawsuit against a bunch of people for file sharing… but with one interesting difference. Rather than just lumping together everyone who downloaded the same file, Liberty is suing a specific BitTorrent swarm, noting the specific info about each IP address that joined the swarm (including when they joined).

While some of the other lawyers in other such mass lawsuit campaigns have made more general arguments along these lines — suggesting that since BitTorrent users swarm together it’s okay to lump them all into a single lawsuit, this is the first one that specifically targets a single swarm and provides all such details. This also lets Liberty add a “civil conspiracy” charge on top of the copyright charges (both direct and contributory infringement). The conspiracy charge seems pretty weak to me. It seems to suggest that merely downloading the BitTorrent client is a sign of proactively joining a conspiracy. That seems like a huge stretch, as there are plenty of legal reasons to use BitTorrent software. Even if most BitTorrent traffic is infringing, merely downloading the client is hardly evidence of a plan to join a “conspiracy.”

Separately, there’s a “negligence” charge, which seems even weaker than the conspiracy charge. Here, the negligence claim is used to go after anyone who did not secure their internet connection to prevent such usage. That seems like a huge stretch, and I can’t see that getting very far. There’s simply no proactive requirement that anyone secure their internet connection to prevent any infringement from happening over it:

Defendants failed to adequately secure their Internet access, whether accessible only through their computer when physically connected to an Internet router, or accessible to many computers by use of a wireless router, and failed to prevent its use for this unlawful purpose.

Reasonable Internet users take steps to secure their Internet access accounts to prevent the use of such accounts for nefarious and illegal purposes. As such, Defendants’ failure to secure their Internet access accounts, and thereby prevent such illegal uses thereof, constitutes a breach of the ordinary care that reasonable persons exercise in using an Internet access account.

That seems like a huge leap, and I’d be amazed if a court bought that argument. As for the effort to lump together everyone in the swarm… that seems to have a much higher likelihood of success than some of the other lawsuits that have been dumped on joinder issues, but I still think it’s a pretty weak claim. The individuals each are totally unknown to each other, may have totally different reasons, defenses, explanations. However, I could see a court much more open to this “swarm” argument than the other random lumping together arguments we’ve seen.

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