August 18, 2011 | By corynne mcsherry

Open WiFi and Liability for Copyright Infringement: Setting the Record Straight

Last week, TorrentFreak ran an interesting pair of posts offering opposing views on an issue that has become increasingly important with the rise of the copyright trolls: whether a person who runs an open wifi network can be held liable when others use the network for copyright infringement.

The problem with “online debates” like this is they can leave folks with the false impression that there are two equally valid approaches to a legal question. In this case, there aren't. The truth is that no court has ever found that anyone is liable simply because another user of his or her open wifi committed some legal wrong. Every day cafes, airports, libraries, laundromats, schools and individuals operate open wifi routers, happily sharing their connection with neighbors and passers by. Sometimes people use those connections for bad acts, most of the time they don’t, the world gets a valuable public service, and the open wifi providers are not liable.

One essay, by attorney Nicholas Ranallo, recognizes as much. Ranallo reviews the standard theories of copyright liability and concludes that no, operating an open wifi network does not make you liable for the activities of others using the network. The other piece, by attorney Marc Randazza, ignores those traditional theories in favor of an unprecedented claim based on negligence and a 1932 case about boats.

It's a creative theory. It's also wrong.

First, there is no negligence theory of copyright liability. Zip, none, nada. Only direct, vicarious and contributory (which includes inducement) (check Ranallo’s post for details on these). In fact, at least one federal judge has opined that the latter theories, called secondary or indirect liability, are also legally improper.

Second, even if there were such a theory, the operators of an open wifi network are a mere conduit for the communications of others, and often enjoy statutory immunities. Under the Digital Millennium Copyright Act, there is a safe harbor for service providers who offer “the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” That definition fits a provider of free public wifi as easily as a traditional DSL provider. Therefore, the open wifi operator may be able to claim the “safe harbor” protection from copyright liability offered by Section 512(a). There are certain prerequisites for this protection, but they are not difficult to meet.

Perhaps hoping to avoid this limitation, the essay suggests that operators can be held liable under a general tort theory of negligence (meaning, it's not a copyright claim, just a general injury claim). But that approach immediately crashes against another legal wall. Section 230 of the Communications Decency Act offers broad immunity from tort claims (including negligence) to providers of “interactive computer services” for claims arising from the activities of their users. The statute’s broad definition of interactive computer service includes “specifically a service or system that provides access to the Internet.” (emphasis added).

We would be shocked if any federal judge affirmed this negligence theory, and, even if a trial court judge did make the error, it would surely be corrected on appeal.

Unfortunately, no judge may ever be able to rule on it. The piece sets out one reason why: if a defendant claims the alleged infringement was the result of others using his network, the copyright owner may attempt to seize all of the defendant’s computers and depose his family, friends and neighbors. (Indeed, Randazza ominously touts avoidance of these heavy-handed tactics as a “benefit” of accepting his odd legal theory.) Query whether these tactics would be legally proper, for a host of reasons that go beyond this particular post, but for many open-wifi network operators, the expense and hassle of mounting a perfectly valid defense will not be worth the candle.

Randazza claims this negligence theory helps his clients enforce their rights against individuals who use the "open wifi defense" as an excuse to avoid liability for their own infringing activities. However, dishonest defendants are not a new problem for the law, and the solution is not to conjure up meritless legal claims that intimidate honest wifi operators.


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