July 11, 2012 | By Mitch Stoltz

Victory for Open WiFi: Judge Rejects Copyright Troll's Bogus "Negligence" Theory

Copyright trolls lost one of their knobby clubs this week. Judge Lewis Kaplan of the U.S. district court in Manhattan ruled that the owner of an Internet connection cannot be found liable for "negligence" simply because another person uses his wifi connection to commit copyright infringement -- even if he knows about it. After this decision, copyright trolls should find it harder to coerce settlement payments from innocent people for the commonplace act of sharing an Internet connection. 

In this case, Liberty Media Holdings v. Tabora, a well-known copyright troll (also known as Patrick Collins) sued a Comcast Internet subscriber for negligence based on his housemate's alleged BitTorrent downloads. The owner of the Internet connection allegedly confessed to the troll that he knew his housemate was doing some infringing downloads.

Copyright law has a complex set of rules and cases dealing with when and how someone can be held responsible for another person's infringement. These "secondary liability" doctrines come up frequently in suits against electronics makers like Dish Networks and Internet sites like blogs and user-generated content forums. As regular Deeplinks readers know, these laws are far from perfect. But they do contain strong protections for Internet providers and Internet services - especially Section 512 of the Digital Millennium Copyright Act.

Liberty Media and its attorneys tried to avoid even dealing with federal law's secondary liability doctrines by bringing a claim based on negligence, which is a state law. A negligence claim requires only that a person disregard a legal duty, causing injury to someone. Liberty's attorney has made this argument before. But when federal and state laws conflict, the Constitution says federal law trumps ("preempts") the state law. In the Liberty Media case, the defendant and EFF argued for preemption. EFF also explained why allowing "copyright negligence" lawsuits would devastate the open Wi-Fi movement that EFF is building. After less than a week of deliberation, Judge Kaplan dismissed Liberty's negligence claim from the outset, reasoning that "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 can re-file the case as a secondary liability case under federal law, but Judge Kaplan suggested that they won't get too far with that strategy, either. Merely providing a tool, like Internet access, that is used for infringement doesn't put you at fault if, as here, the tool is "capable of substantial noninfringing uses." Also, in many cases, the provider will be protected by the DMCA's safe harbors.

Other prolific trolls are pursuing "copyright negligence" claims in other courts, and regularly make this legal claim in their settlement demand letters. We're hoping that other courts follow Judge Kaplan, sending a clear message that the federal laws protecting Internet providers can't be bypassed with artful pleading and that using bogus legal arguments to coerce settlements from innocent Internet subscribers won't be tolerated.

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