Yet Another Court Says You're Not 'Negligent' If Someone Uses Your Open WiFi To Infringe
from the shutting-down-that-line-of-argument dept
Some of the folks filing mass copyright infringement lawsuits have tried to claim that merely having an open WiFi connection on which someone else infringes on copyright-covered works is a form of negligence. Basically, they’re suing based solely on limited information — an IP address — and when those pursued point out that they have an open WiFi, the lawyers insist that this, alone, is a form of negligence. However, the courts aren’t buying it. In July, we wrote about a district court in New York rejecting this argument quickly, noting that the position was “untenable.”
And now a California district court has ruled similarly, completely rejecting the negligence theory on three different points. First up, there is no negligence because negligence requires a relationship and a duty to protect, but no such relationship exists between the copyright holder, AF Holdings, and the defendant in the case:
AF Holdings has not articulated any basis for imposing on Hatfield a legal duty to
prevent the infringement of AF Holdings’ copyrighted works, and the court is aware of none.
Hatfield is not alleged to have any special relationship with AF Holdings that would give rise
to a duty to protect AF Holdings’ copyrights, and is also not alleged to have engaged in any
misfeasance by which he created a risk of peril.
The allegations in the complaint are general assertions that in failing to take action to
“secure” access to his Internet connection, Hatfield failed to protect AF Holdings from harm.
Thus, the complaint plainly alleges that Hatfield’s supposed liability is based on his failure
to take particular actions, and not on the taking of any affirmative actions. This allegation
of non-feasance cannot support a claim of negligence in the absence of facts showing the
existence of a special relationship.
Even ignoring that, the court is skeptical. Noting that even if there was a negligence claim it would be unavailable in this case, because of copyright “pre-emption” (basically, federal copyright law wipes out any state statutes that seek to do the same work).
AF Holdings is seeking to protect its “exclusive rights” from “copying and
sharing.” Simply recharacterizing the claim as one of “negligence” does not add a legally
cognizable additional element…. Thus, because AF Holdings alleges that Hatfield’s action or inaction constituted
interference with its “exclusive rights in the copyrighted work,” the negligence claim is
preempted by § 301 of the Copyright Act.
And then the court goes even further, and says that even if the first two theories don’t kill the negligence claim, there’s also Section 230 of the CDA, which we’ve discussed for years. While the Section 230 safe harbors (protecting a service provider from liability concerning the actions of their users) technically does not apply to intellectual property issues, the negligence claim is not an IP law issue, and thus gets wiped out thanks to Section 230 immunity.
Basically, the idea that you’re negligent if you leave your WiFi open and someone else uses it to infringe seems dead in the water.