AF Holdings, LLC owns the copyrights to various porn videos. AF Holdings has filed numerous copyright infringement actions against individuals who download and share its videos illegally through BitTorrent, an online peer-to-peer sharing tool. Besides targeting the individuals actively downloading and sharing files—whose identities are often unknown and therefore end up being named as “Doe” defendants—AF Holdings goes after owners of the Internet connections used in the torrent activity (the “Network Defendants”). AF Holdings sued the Network Defendants under a negligence theory. AF Holdings alleged that the Network Defendants breached their duty to secure their Internet connections from third parties who use the connections for unlawful activity. In a pair of similar lawsuits, the courts rejected AF Holding’s negligence claims. See AF Holdings, LLC v. John Doe and Josh Hatfield, 2012 WL 3835102 (N.D. Cal. Sept. 4, 2012); AF Hodlings, LLC v. John Doe and John Botson, 2012 WL 4747170 (N.D. Cal. Oct. 3, 2012)
No legal duty to secure Internet connection to prevent copyright infringement
AF Holdings argued that the Network Defendants owed it a duty to secure their Internet connections to prevent infringement of AF Holdings’ copyrighted works. The duty at issue was one of “non-feasance,” or the failure to take certain steps, as opposed to “misfeasance,” which involves activity putting the plaintiff in a worse position, such as exposing the plaintiff to risk of peril. A duty arises in non-feasance situations when the plaintiff has a special relationship with the defendant. Finding no special relationship between the Network Defendants and AF Holdings, the court concluded that the Network Defendants owed no legal duty to protect AF Holdings against copyright infringement. The courts therefore dismissed the negligence claims.
Copyright Act preempts negligence claims
Part of the Network Defendants’ defense was that the negligence claims are preempted by the Copyright Act of 1976 because they seek protection for the same exclusive rights that the Act protects. A state law claim is preempted by the Act when (1) the work at issue comes within the subject matter of copyright, and (2) the rights granted by state law are equivalent to the exclusive rights of copyright holders under section 106 of the Act. The Network Defendants cleared the first test easily because AF Holdings’ videos clearly are protected by copyright. In analyzing the second issue, most courts determine whether the state law claim contains an “extra element” that is different or in addition to a claim based on the Copyright Act. The only “extra elements” in AF Holdings’ negligence claim were the elements of duty and breach of duty. Since the Network Defendants had no duty to secure their Internet connections to prevent copyright infringement, the negligence claims had no extra elements to be saved from being preempted. Essentially, AF Holdings repackaged its copyright infringement claim into a negligence claim.
CDA immunity applies
The Network Defendants also claimed immunity under the Communications Decency Act (“CDA”). The court in the Hatfield case found it unnecessary to decide the issue given the dismissal of the negligence action on other grounds, but the court in the Botson case ruled that the defendant had immunity. A defendant qualifies for CDA immunity if (1) it is the provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue is provided by another information content provider. Botson met these qualifications, the court found. AF Holdings alleged that Botson was the provider of a computer service (i.e., the Internet connection) to pirate the videos. AF Holdings also treated Botson as a copyright infringer or a participant in the infringement. Finally, the information at issue (the videos) were provided by another content provider, namely the “Doe” defendant.
