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Mike Masnick writes on www.techdirt.com – Over a year ago, we wrote about an attempt by a porn company, Liberty Media, to sue a bunch of people it accused of infringing on its copyright. The case had many similarities to copyright trolling lawsuits, but there was one claim in particular that we found quite troubling: the idea that not securing your WiFi was a form of negligence.
The lawyer representing Liberty, Marc Randazza [pictured], is someone I know and like, and who I normally find on the good side of lots of cases (and, in fact, I’ve sent people his way when they’ve been looking for good lawyers).
When news came out that someone had “settled” with the company and the vast majority of the amount the person agreed to pay was for that “negligence,” we found it quite problematic and told Randazza we were planning to write about it. In response, he sent a long email to both me and Torrentfreak — which they published as a guest opinion — defending why an open WiFi qualifies as negligence. I wrote back a response as to why I thought he was completely wrong on this one.
And, now, a court may be deciding the same thing. The EFF has filed an amicus brief in what I believe is a related case (or possibly the same one?) arguing that this theory of negligence is ridiculous. Here’s just a snippet:
LMH’s theory of liability cannot withstand even passing scrutiny. No matter how artfully pled, LMH’s claim sounds in, and is preempted by, copyright law. And as decades of copyright jurisprudence and legislation make clear, that body of law does not recognize a cause of action based on mere negligence. Accordingly, no court has ever found, or could ever find, that anyone has violated copyright law simply because another user of his or her Internet connection did so.
And that is a good thing. Every day cafes, airports, libraries, laundromats, schools and individuals operate “open” Wi-Fi routers, sharing their connection with neighbors and passers-by at no charge. Sometimes people use those connections for bad acts. Most of the time they don’t, and the world gets a valuable public service of simple, ubiquitous Internet access.
Creating a duty under tort law to prevent others from infringing copyright would drastically inhibit this activity, to the detriment of the general public and clear federal copyright and telecommunications policies promoting convenient, universal access to the Internet. Thus, manufacturing a new copyright cause of action based on negligence – which, make no mistake, is precisely what LMH asks the Court to do – would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
It would be nice to have a clear statement from the court on this matter, clarifying that merely having open WiFi — as thousands upon thousands of individuals and businesses do — is not a sign of “negligence” that automatically makes you liable for any infringement done on those networks.