Having An Open WiFi Does Not Ipso Facto Make You Liable For Negligent Infringement.

Here's the scenario:  You have an open WiFi (i.e. no password required), someone (maybe you, maybe not), uses that IP address to download a copyright work, someone (probably a copyright troll) sends a subpoena to your internet service provider and finds that this happened, you receive a letter from a copyright troll attorney that says in basic terms:  "You are a horrible person.  A copyright protected work was illegally downloaded using your IP address.  It was entitled something that included "hot", "wet" and a bodily orifice in the title.  You should be ashamed and if you pay me $3,000 now, it will all go away and your wife/girlfriend/scout troop/sunday school class will never know.  Otherwise, we can sue you for negligence because your WiFi was not protected and we don't even have to prove you did the download."

Maybe this comes as a huge surprise to you, maybe it doesn't.  However, will the negligence claim fly and allow the trolls to tag you with liability even if they can't prove you actually did it?  A couple of courts have said no.  Last week the U.S. District Court for Northern California in a case styled AF Holdings LLC v. John Doe and Josh Hatfield held that the mere inaction of not protecting your WiFi was not negligence because the defendant did not owe a duty to the plaintiff to take an affirmative action to protect the plaintiff's intellectual property.  In addition, the court held that this was still a copyright case and state law of negligence was preempted by the federal copyright statute.  And to further make a point, the court found immunity for the defendant under Section 230 of the Communications Decency Act.

So, it seems to be the trending opinion that you aren't strictly liable for contributory infringement for just leaving your WiFi open.  Seems right to me.

IsTime Warner Cable Complicit in Illegal Downloading?

Time Warner Cable has just been accused of promoting copyright infringement in a pleading filed in a lawsuit targeting illegal downloaders.  But first a bit of history about this case.  The US Copyright Group is a company owned by a collection of IP lawyers who are filing a number of lawsuits on behalf of movie producers to seek damages from illegal downloaders.  So far five lawsuits have been filed against tens of thousands of alleged infringers.  (Included in that group of producers is the infamous Uwe Boll.)  This campaign is a stalking horse of sorts in an effort to prove to the large studios that they should join in this strategy of suing thousands of alleged infringers instead of going after the torrent sites or a small group of infringers. 

The Hollywood Reporter stated that this new strategy is possible because of a new technology developed by the German company, Guardaley IT, that allows for real time analysis of movie downloading and torrents.  There was some success using this technology in lawsuits in Germany, and that spurred the US Copyright Group to use it in going after downloaders in the United States.

That brings us to the current case.  (Actually the one involving Uwe Boll's movie.) Time Warner Cable recently filed a third-party motion to quash or modify the subpoena that requested the IP addresses of the alleged infringers.  TWC claimed that the effort required to obtain the thousands of IP addresses would be costly and take months to complete. The US Copyright Group filed a response yesterday upping the ante against Time Warner.  In the response the plaintiffs argued that Time Warner is opening themselves up to a claim contributory copyright infringement under the standards established by the Supreme Court in the Grokster decision

The plaintiffs argued that because Time Warner is protecting the privacy of their customers they are letting the public know that infringers will be safe using Time Warner as an ISP.  Thus, the plaintiffs claim, Time Warner is in essence "promoting" copyright infringement. 

Under the Grokster standard, a party is liable for contributing to copyright infringement if it:

  • promotes that its service could be used for infringement
  • failed to filter out infringing use when possible
  • the business plan depended on a high volume of infringement. 

It's hard to see how Time Warner's actions have met any of those standards.  Moving to quash a subpoena that would be costly and time consuming is hardly tantamount to promotion of copyright infringement.  While the argument provided by the plaintiff is weak, it does portend the possibility of future litigation targeting ISP's.  If you want to follow this story, check out the Hollywood Reporter blog, they have been on top of this with a number of exclusives.