You Don’t Have to Secure Your Wi-Fi to Help Prevent Piracy, According to JudgeBy: Josh Wolford - September 13, 2012
In a ruling that should make internet freedom activists very happy and many copyright holders very sad, a California Judge has set a precedent that protects internet subscribers from lawsuits based on “negligence.”
The decision comes out of the case AF Holdings vs. Josh Hatfield and John Doe. In that case, adult video company AF Holdings sued Hatfield for failing to secure his internet connection, which allowed John Doe to illegally download their videos through the open Wi-Fi connection. Because of Hatfield’s “negligence,” he must be held liable for the piracy according to AF Holdings.
Hatfield filed a motion to dismiss, claiming that there’s no way AF Holdings could say that he had an obligation to secure his Wi-Fi in order to protect the company from piracy. Judge Phyllis Hamilton sided with Hatfield.
“AF Holdings argues that it seeks to hold Hatfield liable for ‘negligent maintenance of his residential network,’ which it asserts allowed a third-party to commit large-scale infringement of AF Holdings’ copyrighted works. Specifically, AF Holdings alleges in the complaint that Hatfield owed it a duty to secure his Internet connection to prevent infringement of AF Holdings’ copyrighted works. Thus, the entirety of this claim involves the allegation that Hatfield failed to take certain steps – in other words, allegations of non-feasance (as opposed to misfeasance),” reads the court documents.
Hamilton explained that the only way Hatfield would have to take steps to help protect AF Holdings’ property is if a “special relationship” existed between the two.
“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.
Hatfield had no duty to AF Holdings to secure his Internet connection in order to protect AF Holdings’ materials from infringement,” wrote Judge Hamilton.
This is a devastating blow to copyright holders’ tactic of claiming “negligence” when someone fails to secure their internet connection, thus allowing another person to use it to torrent content. The entire “negligence” tactic was created to circumvent previous rulings that stated that IP addresses do not equal people.
Most copyright lawsuits stem from companies discovering an “offending” IP address and then later attaching it to an actual person. But common sense tells us that the one paying for the interent service is not always the one using the service. It’s really hard to prove that a single person (even if their name is on the bill) was the one who pirated materials. In the past, Judges have sided with defendants and said that using IP addresses is not an accurate method of identifying users.
Now, there is precedent for both the “IP addresses aren’t people” argument and the fact that internet users aren’t liable for everything that happens using their service.
According to the Electronic Frontier Foundation (EFF), the “negligence” strategy runs into a couple of roadblocks even if it results in an initial valid claim:
The “negligence” strategy had three fatal flaws, according to the court. First, an Internet subscriber like Mr. Hatfield has no legal duty to police his Internet connection to protect copyright owners like AF Holdings. Second, even if AF had a valid “negligence” claim against Mr. Hatfield under state personal injury law, federal copyright law would override it. This is called preemption. And finally, even if copyright law didn’t trump a negligence claim, Section 230 of the federal Communications Decency Act probably would.
Although this is unlikely to stop the flurry of copyright cases stemming from BitTorrent we’ve seen lately, it does give defendants a case to cite as precedent if they find themselves in a similar pickle. It’s nice to see a Judge use common sense in an arena where common sense is sometimes hard to find.TorrentFreak]