Negligence Claims Dismissed in Porn Piracy Case

Jul 14, 2012 9:00 AM PST

NEW YORK — Corbin Fisher's high-profile suit against a pair of roommates sued for allegedly trading porn online was dismissed this week.

In the original suit filed at U.S. District Court in New York, Corbin Fisher charged that defendants Cary Tabora and Schulyer Whetstone, both roommates and named in another now-dismissed porn BitTorrent piracy suit involving some 840 infringements, were responsible for infringement for poaching and trading "Corbin Fisher's Down on the Farm" through a BitTorrent network, or at least one of them is.

Corbin Fisher, in its complaint, said that Tabora spoke with its attorneys and admitted that it was Whetstone who was the party who illegally and distributed the movie.

"In fact, Tabora stated emphatically, 'I was negligent' in allowing Whetstone to use his [Wi-Fi] Internet connection to illegally pirate content, and that he was aware that it would eventually cause legal problems for him," the suit said.

But U.S. District Judge Lewis Kaplan said that Corbin Fisher's state law negligence claim was preempted by federal copyright law and can't be brought. Kaplan pointed to Section 301 of the Copyright Act, which allows preemption with respect to other laws.

Other claims were dismissed because the title of the film in the complaint, "Corbin Fisher's Down on the Farm," didn't match the title in the copyright registration, "Corbin Fisher Amateur College Men Down on the Farm."

But Kaplan did allow Corbin Fisher the opportunity to amend direct and contributory infringement claims no later than July 25.

The case gained notoriety after the Electronic Frontier Foundation took sides, filing a friend-of-the-court brief for the defendants.

EFF postulated that if Corbin Fisher was successful in the case, Wi-Fi providers could be held responsible for users' behavior and public access to the Internet would be sharply reduced because of liability fears.

Corbin Fisher, however, said at the time that the EFF is trying to "re-frame" the case as a wholesale opposition to Wi-Fi copyright negligence claims in commercial environments.

Mitch Stoltz, a staff attorney at the EFF who worked on the amicus brief, told XBIZ "the EFF is very happy with this result," noting that the judge signaled that Corbin Fisher "is likely to lose the copyright claim against Cary Tabora if it re-files the case, because simply providing an Internet connection for a housemate isn't enough to make Tabora liable for the housemate's illegal downloading, even if he knew about it."

Corbin Fisher counsel Marc Randazza did not respond to queries whether he would retry the case as regards to the copyright claims.

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