Frequently, both the Electronic Frontier Foundation and our good friend and Fearless Leader ?, Marc, are on the same side, fighting the good fight. Not at the moment.? They have filed a brief in support of a motion to dismiss a claim against an individual named Cary Tabora.? It is alleged that Cary?s roommate used Cary?s internet connection, with Cary?s knowledge, to download and then distribute a copyrighted video.? The copyright owner claims that Cary was negligent in permitting the roommate to violate the owner?s copyright.
Although our Fearless Leader ? is not noted on the docket, this is the second time the case was brought.? It is now in SDNY.? It was originally brought in SDCA by our Fearless Leader ?, but was dismissed for want of personal jurisdiction.? In arguing that a provider of internet services, whether a roommate or airport wifi, does not have a duty to prevent copyright infringement, EFF has referred to the copyright owner, and by extension our Fearless Leader ? as a ?Porn Troll?.
While there is nary a reference to ?Porn Troll? in the vernacular, one can only assume they mean ?Copyright Troll relative to Pornographic media?, but that is a mouthful.? I would beg to differ; Fearless Leader ? is not a Copyright Troll.? Typically, a Copyright Troll does not publish anything, like a Patent Troll; it merely seeks to extort rents.? See, Wikipedia Entry.? Here, the copyright owner does publish and distribute media.? This is not troll-like behavior.
It seems our Fearless Leader ? is alleging?an internet extension of prior law.? In Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984), the VCR maker was not vicariously liable for infringement because it could not exercise meaningful control.? Could Tabora?? The Copyright Act excuses libraries from liability for use of their photocopiers (17 U.S.C. ? 108(f)(1))? one can assume by the inclusio unius principle that other photocopier owners are not immune from liability; is Tabora?s internet connection like a photocopier?
I don?t know enough of the facts of the case to decide whether or not EFF or Fearless Leader ? is in the right on this.? Read the Complaint for yourself.?This might be a good case, though, for a bright line to be drawn.? EFF might be a bit overdoing it, with a ?the sky is falling? mentality.? This appears to be a case about (if Tabora is telling the truth) the liability of a person for knowingly letting another person use their resources to violate copyright.? Tabora could be liable if he knew of infringement (or the likelihood) and controlled the means of infringement; an airport or restaurant likely won?t know what its customers are doing.
In the meantime, I?m hoping to get as much currency out of the new nickname as possible.
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