Not Securing Your Internet Access To Block Infringement Is 'Negligence'?

from the yes,-well... dept

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.

Filed Under: copyright, internet access, negligence
Companies: liberty media

Guy Sues Online Game Company NCSoft, Saying That Lineage II Is Too Addictive

from the personal-responsibility? dept

Apparently, a federal district court is allowing a guy to sue NCSoft for making the super popular online game Lineage II too addictive. Seriously:

Craig Smallwood, the plaintiff, claims NCsoft of South Korea should pay unspecified monetary damages because of the addictive nature of the game. Smallwood claims to have played Lineage II for 20,000 hours between 2004 and 2009. Among other things, he alleges he would not have begun playing if he was aware "that he would become addicted to the game."

Smallwood, who did not immediately respond for comment, alleged that the company "acted negligently in failing to warn or instruct or adequately warn or instruct plaintiff and other players of Lineage II of its dangerous and defective characteristics, and of the safe and proper method of using the game."

This sounds like the sort of case that should be easily dismissed, but not so fast according to the judge. You can read the judge's full ruling here: Reading through the details, the story just gets more and more bizarre. Not only does Smallwood claim that NCSoft failed to alert him to the addictive nature of the game... he also gets upset when he was later banned from the game. It's difficult to see how both of those issues can co-exist, though, he uses it to explain how the "addiction" and the sudden forced cold turkey cut-off meant that he was "unable to function independently, he has suffered psychological trauma, he was hospitalized, and he requires treatment and therapy three times a week."

Of course, we still haven't seen any evidence that video games create a real addiction issue. Yes, people can get very into games, but to the point of being "unable to function independently" seems a bit extreme. Anyway, the court does dismiss some of the claims, pointing out that he fails to make the case for "intentional misrepresentation," "negligent misrepresentation," "intentional infliction of emotional distress" and "unfair and deceptive trade practices." However, the court does find that Smallwood can at least move forward on claims of "defamation," "negligence and gross negligence," and "negligent infliction of emotional distress," though the judge still does sound a bit skeptical that those will really go anywhere.

Filed Under: addiction, defamation, lawsuits, lineage ii, negligence, video games
Companies: ncsoft