Court Says Negligence Claim For Allowing Downloading On Your WiFi Is 'Untenable'

from the there-goes-that-one dept

Wed, Jul 11th 2012 8:14am — Mike Masnick

A few weeks back, we wrote about a lawsuit involving porn company Liberty Media, once again trying to make a negligence claim against the operator of a WiFi network, because someone else had downloaded infringing content on that network (and, in this case, apparently the owner of the network was aware of this). As we noted, the EFF was troubled by this line of reasoning and filed an amicus brief arguing that the negligence theory would set a dangerous precedent. The court has now ruled and rejected the negligence theory as "untenable."

The right that Liberty seeks to vindicate by its state law negligence claim – the imposition of liability on one who knowingly contributes to a direct infringement by another – already is protected by the Copyright Act under the doctrine of contributory infringement.

Liberty nevertheless argues that its negligence claim asserted here is not preempted because, as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer. In light of the preceding discussion and the doctrine of contributory infringement – which Liberty’s memorandum ignores entirely – that position is untenable.

The court dismissed the entire complaint, but more on a technicality (the work named does not match the registered copyright). But it certainly appears from this ruling that the negligence claim (and others like it) are dead issues. Someone could, conceivably be sued for contributory infringement for how they run the network (if they actively participate), but negligence? Nope.

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Filed Under: liability, negligence, wifi
Companies: eff, liberty media

40 Comments

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Donnicton, 11 Jul 2012 @ 8:17am

Well, there goes Marc Randazza's only real argument, right out the window.
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sophisticatedjanedoe (profile), 11 Jul 2012 @ 8:33am

Tugboat is sunken
A bit more "colorful" coverage ;)
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Anonymous Coward, 11 Jul 2012 @ 8:44am

I think it's still an issue that isn't entirely resolved. The judge apparently didn't consider that the terms and conditions of the provider generally do not allow sharing of an internet access in this manner.

It's not a dead legal issue, just one that needs a better approach.
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John Fenderson (profile), 11 Jul 2012 @ 8:52am

Re:
The judge apparently didn't consider that the terms and conditions of the provider generally do not allow sharing of an internet access in this manner.

How would that impact the question of whether or not having open wifi is negligence? It's just a contract issue between the customer and the ISP.
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Anonymous Coward, 11 Jul 2012 @ 8:54am

Re:
The judge apparently didn't consider that the terms and conditions of the provider generally do not allow sharing of an internet access in this manner.

Huh? So how can the porn company sue for violating the terms and conditions of the service provider?

If the service provider wants to cut service on their own, that's another issue.
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Rikuo (profile), 11 Jul 2012 @ 8:58am

Re:
I'd love it if an ISP actually had this in their TOS. Thou shalt not share your connection. That would make it so you couldn't use a router at all, since how is the ISP able to distinguish between devices you own that are on the network and devices other people own that are on the network?
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Anonymous Coward, 11 Jul 2012 @ 8:59am

Re:
Terms and conditions of the provider are meaningless. The average person has no idea what a secure wireless network is. The average ISP doesn't provide good secure wireless even for those that issue their own access points nor can they require that you use secure wireless because of device compatibility.

From a computer security perspective it is a dead issue. The average person cannot control this.

This would be akin to saying that a person is negligent for their car's emissions going out of whack because they got some bad gas
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Richard (profile), 11 Jul 2012 @ 9:01am

Re:
It's not a dead legal issue, just one that needs a better approach.

Steven Gibson - is that you?
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Rikuo (profile), 11 Jul 2012 @ 9:02am

Re: Re:
I mean, imagine it. I live in a 2 bed apartment and I pay the internet bill (my choice to do so). Because I love getting the latest and greatest in hardware, I got a dual-band Netgear 802.11n router. I've got a PC, Xbox 360 and PS3 in my room, all connected to it, while my roomie has a laptop, iPad and smartphone. I also have the router broadcasting a Guest account, in case someone in the apartment block needs to check their email. I consider it being neighbourly.
So...wanna tell me again that an ISP should enforce such a provision, given that its impossible to do so and would only negatively impact their customers?
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Mercuryweb, 11 Jul 2012 @ 9:16am

jov
There is no excuse for misuse of WiFi. If you own it the responsibility is yours.
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Almost Anonymous (profile), 11 Jul 2012 @ 9:26am

Re: Re:
I hate to say it, but he could very well be right, inasmuch as verbiage forbidding 'sharing'. However, no ISP would try to directly enforce this: I think they put that in there so that they can refuse to do tech support if you admit you have a router somewhere on the line.

Regardless, an ISP's contractual issues with a customer would not give a third party (like Liberty) any standing to sue. That's just Carreon-thinking right there.
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John Fenderson (profile), 11 Jul 2012 @ 9:30am

Re: Re:
This used to be a very common term, although more and more ISPs have been dropping it over the past decade.

It doesn't prevent you from using routers. You are able to share the internet connection to as many devices as you wish on your premises. It applied only to sharing the connection to people outside your premises.

It was always pretty much completely unenforceable and silly, and I doubt that anybody ever took it seriously.
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Anonymous Coward, 11 Jul 2012 @ 9:32am

Re: Re: Re:
Still doesnt explain how this is relevant at all to the lawsuit the porn company, not the service provider, is bringing forward.
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Jeff, 11 Jul 2012 @ 9:36am

Hmmm
Great router comments, but what then happens when the provider actually also provides the router as well that has that capability to share and broadcast? I have had two different providers in the last few years that provided the wireless router as well, both times set up with default names, no security, wide open.
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RonKaminsky (profile), 11 Jul 2012 @ 10:02am

Hard for me to see how that could work in practice
Negligence under tort law is defined individually by each state, but presumably the unification of copyright law under Federal jurisdiction overrides the states' ability, here. And as far as I remember, the Federal copyright act does not define a "duty of care" standard.
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Killercool (profile), 11 Jul 2012 @ 10:11am

Re: Hmmm
Ditto, here. While I opted for the standard cable modem (why pay $15/month for a $60 router?), and use my own (secured) wireless router, I was OFFERED a wireless router by my ISP. In fact, in the instructions for automated "internet repair," there is a reminder for the user to "temporarily connect the computer directly to the modem, since a router may cause communication issues with the server."
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Anonymous Coward, 11 Jul 2012 @ 10:44am

Re: Re: Re: Re:
When you sue, you sue everyone and let the courts sort it out. They are always fishing expeditions.
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John Fenderson (profile), 11 Jul 2012 @ 11:28am

Re: jov
That statement is so broad that it's just silly. I disagree with what I think you mean (I should not be responsible for the misuse of my wifi unless I am aware that it is being misused and continue to allow it anyway), what you're saying here is even broader than that.

You're saying that even if you have your wifi locked down and it's cracked (not that difficult to do even if you're using WPA2) then you're still responsible for what the crackers do.

In other words, you're saying that there is no responsible way to use wifi except by employing a VPN. Which makes Wifi unavailable as a consumer item, since most people couldn't tell you what VPN means, let alone know how to set one up.
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Anonymous Coward, 11 Jul 2012 @ 11:30am

Tossed on a technicality--at least for now. Take note that Randazza goofed on that one. The name on the registration needs to match. Doh.
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Andrew F (profile), 11 Jul 2012 @ 11:31am

Re: Hard for me to see how that could work in practice
If you could get around federal preemption, I could see this being asserted as a pure state law claim. Think of it this way: If you let a guy in a ski mask borrow your gun, which he then uses to rob a bank, the bank might sue you for negligence.

Here's the kicker though - under a pure negligence theory, you don't get statutory damages. You only get actual losses (plus punitives, which are still limited relative to statutory damages). Which is probably why copyright holders haven't tried rolling it out more often.
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John Fenderson (profile), 11 Jul 2012 @ 11:33am

Re: Hmmm
what then happens when the provider actually also provides the router as well that has that capability to share and broadcast?

I don't see how that changes any of the arguments either for or against liability. Just because the provide is lending it to you doesn't mean you can't configure it. (and if you really can't configure it, then don't use it).

Personally, I wouldn't use a provider-supplied router under any circumstances. ISPs are generally untrustworthy and shady, so the less reliant I am on anything they provide the better. You never know what backdoors that router might contain.
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Anonymous Coward, 11 Jul 2012 @ 12:33pm

Re:
There is no law saying you have to protect your network.

Plus it would be like breaking in someones house stealing their guns then going out and killing people with them. Then finally when the police catches up they give the original owner life in prison for not having their gun cabinets better protected.

What if you loaned a gun to a friend that has a gun card then he goes on a rampage? I loan one of my buddies my rifle pretty much every time hunting season is open.
By their logic it would be entirely my fault.

What if someone bypassed your networks security? Would it still be your fault?

I mean lets be realistic most home networks are not very secure. It's just a thin shield to give the average user a sense of false security.

Even worse the majority do not even change the default password. On top of that it's not hard at all to make yourself look like them.

Na someone needs to prove their IP collecting is very very flawed. Someone needs to find a torrent with them logging it and connect with millions of IPs. In that action you just set up a ton of innocent people.

What would happen to them people? Well they would most likely be extorted out of a few grand each.

Thinking about that really pisses me off. I am going to put on a show to prove my point.

Back in the late 90's and early 2000's I had over 300,000 just waiting for me. You'd be surprised how many people would download anything if they think it could be used to dupe.

Now it's years down the road and I'm not into that shit anymore BUT!!! there are plenty who still are.

They're never gonna make laws to stop these scumbags from extorting people till someone sets them up. After they try to extort a few hundred thousand innocent people, the law will have no choice than to make laws to stop such dirty actions from taking place.

It's absurd that it would have to go that far to see change. These morons like King need to have their citizenship revoked and their asses thrown in Gitmo. They're doing more damage to this world than any terrorist could ever dream of.
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Anonymous Coward, 11 Jul 2012 @ 12:57pm

Re: jov
You don't own it, you purchase the right to use it.
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Anonymous Coward, 11 Jul 2012 @ 1:54pm

Re:
The court dismissed the entire complaint, but more on a technicality (the work named does not match the registered copyright). But it certainly appears from this ruling that the negligence claim (and others like it) are dead issues. Someone could, conceivably be sued for contributory infringement for how they run the network (if they actively participate), but negligence? Nope.

I see that you were hedging there. The judge did more than say the negligence claim was untenable--the court completely rejected the argument saying that as a matter of law the argument is meritless. While the mismatched registration was enough to dismiss the infringement claim for failure to state a claim, the judge actually looked at and rejected the negligence claim (while infringement requires the claim of a valid registration, negligence does not). So when you say that the court dismissed both claims "more on a technicality," that's not quite right. The infringement claim was dismissed because of the technicality (the mismatched registration), but the negligence claim was shot down as being without merit as a matter of law. This is a complete defeat on the negligence claim.
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dwg (profile), 11 Jul 2012 @ 2:01pm

Re: jov
Obvious troll.
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Milton Freewater, 11 Jul 2012 @ 2:41pm

The technicality is a story itself
"The court dismissed the entire complaint, but more on a technicality (the work named does not match the registered copyright)."

I find this reasoning pretty significant, actually.

Liberty own sthe moie "Corbin Fisher Amateur College Men Down on the Farm." The file apparantly torrented was called "Corbin Fisher's Down on the Farm." Liberty claimed the file with that title was protected by the same copyright as its movie. Uh uh.

What happens if a porn maker owns the copyright to "Bang Bus 5" and you torrent your own movie called "Bangin on a Bus 5"? Can they sue all your viewers for trying to infringe their copyright?
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Milton Freewater, 11 Jul 2012 @ 2:42pm

The technicality is a story itself
"The court dismissed the entire complaint, but more on a technicality (the work named does not match the registered copyright)."

I find this reasoning pretty significant, actually.

Liberty owns the movie "Corbin Fisher Amateur College Men Down on the Farm." The file apparently torrented was called "Corbin Fisher's Down on the Farm." Liberty claimed the file with that title was protected by the same copyright as its movie. Uh uh.

What happens if a porn maker owns the copyright to "Bang Bus 5" and you torrent your own movie called "Bangin on a Bus 5"? Can they sue all your viewers for trying to infringe their copyright?
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Ben (profile), 11 Jul 2012 @ 3:06pm

Re: Barges are sunken
You realize, of course, the tugboats didn't sink -- the barges sank, but they sued the tugboat owners.

Yes, very colorful except for the fog and the rather bland paint job of the tugboats :-)
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That Anonymous Coward (profile), 11 Jul 2012 @ 6:08pm

Re: The technicality is a story itself
They were not helped by producing a reproduction of the actual copyright registration to the court in their filing like so many trolls do.
Slipshod until the end it seems.
The movie in question is often just called Down on the Farm, the Hash(s) they are using in their multitude of cases do actually point to what I believe are copies of the Corbin Fisher blah blah blah Down on the Farm DVD ripped to a smaller format. Every filing in the "Down on the Farm" cases just calls it Down on the Farm, never establishing the full name and then saying after we just call it Down on the Farm. Sometimes they include the copyright registration page, but more often don't and just cite the number. To have a valid claim one needs to actually reference real titles, not shortened forms. Otherwise it becomes difficult to know what the allegedly infringed property really was.

Its kinda how no one has ever explained how the "IP tracking" firm was able to confirm the file being shared was actually the film in question. Because you can't compare it to the DVD, or the footage, or make your own rip of it... you need to download the file and then look at it... and your doing this using BitTorrent where clients upload as they download different pieces... so to "verify" this is indeed the material at question you were participating in sharing material making the infringment worse. But they never want to speak about this.

This case worries me about the roommate not answering the charges, there are several trolling cases involving LMH and their corporate council Randazza in their cases and cases farmed out to smaller firms allowed to practice in other states where the service has been found to be lacking. In every one of these cases they file "proof" of service then as soon as the window closes they move for default. They've been caught a couple times having not provided valid service to defendants, either to disguise the defendant is well outside the courts jurisdiction or to just land a tasty default judgement.

I can show a proof service claiming it was served in the middle of a lake, and 4 (or was it 5) attempts at service/move for default in 1 case and the court was displeased with their inability to provide the legally required service and be truthful.
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That Anonymous Coward (profile), 11 Jul 2012 @ 6:11pm

Re: Re: Barges are sunken
If we laughed about the barges sinking they might think I was implying the lawyer was fat.
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That Anonymous Coward (profile), 11 Jul 2012 @ 7:06pm

Re: Re: Re:
I think of it like the terms once upon a time where the cable company demanded they were the only ones who were allowed to put cable lines into different rooms of your home. Then it was decided their rights over the cord ended at the wall of the house. As long as your not hacking the system, they don't get to say you can only have 2 pieces of coax outlet unless you pay us to do more.
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Lazy n Hazy, 11 Jul 2012 @ 8:36pm

Re: Re:
"The average person has no idea what a secure wireless network is."

You can say that again. I've been trying to get my parents to understand the implications of not securing their open wi-fi network, as well as the pitfalls of using other open networks that are untrusted. I honestly don't think I got through to them. They just don't understand this tech stuff which I think probably holds true for a great many other internet users out there too. I've found even the ones who do understand it, or at least believe they do, usually don't get it right either.
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Anonymous Coward, 12 Jul 2012 @ 2:01am

Re:
The judge in theft cases usually don't consider that various security devices generally do not allow illegitimate bypasses of safety measures. It's not a dead legal issue; we should be pursuing the prosecution of owners who fail to sufficiently secure their stolen goods.
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Niall (profile), 12 Jul 2012 @ 6:02am

Re: Re: Re:
Since our ISP (Virgin) actually provides a wireless router as part of normal service they might have difficulty with that one...
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Niall (profile), 12 Jul 2012 @ 6:05am

Re: Re: Re: Barges are sunken
Since one of the tugboats was the TJ Hooper, you could think of a similarly named TV cop and not be far wrong...
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Anonymous Coward, 12 Jul 2012 @ 7:34am

Re: Re:
It would show that the user operated in a negligent fashion to start with. The ISP does not allow sharing, but willfully sharing your internet connection violates the terms, so the end user should be liable for what happens on their connection.

Further, if the wireless device in question is shipped with security enabled (which most are now) and was willfully and intentionally disabled or bypassed, it shows intent to allow anyone to do anything on their connection, creating liability.

Remember, without the open wireless, there would be no crime. Open wireless is a choice, not a requirement.
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sophisticatedjanedoe (profile), 12 Jul 2012 @ 10:08am

Re:
This observation led me to an interesting argument that is naturally derived from Randazza's "goofing" of the name mismatch. I give this idea to trolls for free:

What is the big deal if the "expert" recorded 94.23.124.34 with his super-accurate software, and I specified 94.23.124.84 int the complaint? Is it a big deal? It's just a typo, one digit, come on!
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Damtox, 5 Jan 2013 @ 1:04am

There is no excuse for misuse of WiFi. If you own it the responsibility is yours.
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abmstudio, 7 Feb 2014 @ 3:15pm

There is no law saying you have to protect your network.
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Niemiecki, 7 Mar 2018 @ 2:30am

You put a lot of interesting information, much of which I didn’t know about.Thanx.
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