User:Morninj/2014cyberlawpaper

Topic: copyright claims against operators of open WiFi networks.

Liberty Media Holdings, LLC v. Tabora, No. 12 Civ. 2234(LAK), 2012 WL 2711381 (S.D.N.Y. July 9, 2012)
“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.” Id. at *2.

See Stolz below (“Victory for Open WiFi: Judge Rejects Copyright Troll’s Bogus ‘Negligence’ Theory”).

In re BitTorrent Adult Film Copyright Infringement Cases, Multiple Civil Actions, 2012 WL 1570765 (E.D.N.Y. July 24, 2012)
“These actions are part of a nationwide blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent. The putative defendants are identified only by Internet Protocol (‘IP’) addresses.”

“ . . . the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time. An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones.”

AF Holdings, LLC v. Doe, No. C 12–2049 PJH, 2012 WL 3835102 (N.D. Cal. Sept. 4, 2012)
“Before the court is the motion to dismiss filed by defendant Josh Hatfield (‘Hatfield’). Having read the parties’ papers and carefully considered their arguments, the court finds that the motion must be GRANTED.”

“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.”

See Stolz below (“Copyright Trolls’ Bogus ‘Negligence’ Theory Thrown Out Of Court Again”).

Malibu Media, LLC v. John Does 1-67, No. 2:12–cv–267–FtM–99AEP, 2012 WL 6720996 (M.D. Fla. Oct. 24, 2012)
“ . . .this Court understands that, given the nature of the Internet and the variety of methods available to access the Internet, such as WiFi, it is likely that some of the customers identified by the discovery requests to the ISPs may not be the ultimate infringers upon Plaintiff’s copyright. But clearly the identity of the ISP customer is relevant under Rule 26, in that it is “reasonably calculated” to lead to the identity of the infringer whether it is the ISP customer or some other individual. Therefore, the Court finds that any concern about identifying a potentially innocent ISP customer, who happens to fall within the Plaintiff’s discovery requests upon the ISPs, is minimal and not an issue that would warrant the Court to exercise its inherent power to govern these discovery matters by minimizing or prohibiting the otherwise legitimate, relevant, and probative discovery.”

AF Holdings, LLC v. Rogers, No. 12cv1519 BTM(BLM), 2013 WL 358292 (S.D. Cal. Jan. 29, 2013)
“Plaintiff’s negligence claim, to the extent it rests upon a theory of knowing facilitation of infringement, is preempted. See Liberty Media Holdings, LLC v. Tabora, 2012 WL 2711381 (S.D.N.Y. July 9, 2012) (holding that state law claim of negligence, alleging that defendant knew someone was using his internet connection to pirate copyrighted motion pictures, fell squarely within the realm of contributory copyright infringement and was preempted). *4 To the extent that Plaintiff’s negligence claim alleges that Defendant failed to properly secure his internet connection or failed to properly monitor the use of his secured internet connection by others, Plaintiff’s claim fails because there is no underlying duty.”

Eric Bangeman, Ars Technica, Bill criminalizing WiFi leeching shot down, and rightly so, March 23, 2008
“If you use someone else’s WiFi signal without permission, you’re a thief. That’s the conclusion of a bill introduced into the Maryland General Assembly last week. Sponsored by Delegate LeRoy E. Myers, Jr., the legislation would criminalize the unauthorized use of a wireless access point in the state; it has since received an ‘unfavorable report’ by the House Judiciary Committee, which all but dooms its prospects of passage.”

Nicholas Ranallo, TorrentFreak, Are You Guilty if Pirates Use Your Internet? Lawyer Says No, August 6, 2011
“Every month thousands of people are sued for allegedly sharing copyrighted material on BitTorrent. Many of the accused claim to be innocent, and point their finger at someone else who may have used their Internet connection to share the file. But does this mean they’re off the hook? Lawyer Nicholas Ranallo believes so.”

Mark Randazza, TorrentFreak, Are You Guilty if Pirates Use Your Internet? Lawyer Says Yes, August 6, 2011
“What it comes down to is whether the defendant had a part in the plaintiffs damages. So the question is not: ‘Is it illegal to have open wifi?’ The correct question is: ‘Can you be held liable for what others do with your connection if you leave your WiFi open?’ The answer to that is ‘yes you can.’”

Corynne McSherry, EFF, Open WiFi and Liability for Copyright Infringement: Setting the Record Straight, August 11, 2011
“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.”

Sherwin Siy, Public Knowledge, Open WiFi and Copyright Liability: The Law, and Also Some Perspectives on Negligence, August 11, 2011
“Torrentfreak recently ran a fascinating pair of opinion pieces from two lawyers regarding whether or not someone could be liable for copyright infringement if someone else used their open WiFi connection. One attorney, Nicholas Ranallo, walks through the established law of direct and secondary copyright liability, and comes to the conclusion that generally, no, you’re not liable for someone else’s infringements using your connection. The other attorney, Marc Randazza, doesn’t discuss copyright liability, but instead starts drawing out hypotheticals about the law of negligence.”

Nicolas Ranallo, TorrentFreak, Open WiFi and Pirates: Why Copyright Negligence Won’t Fly, August 28, 2011
“As some of you may recall, Mr. Randazza and I recently wrote competing viewpoints on the extent of third-party liability for copyright infringement. As some of the comments noted, the two articles talked past each other a bit. My article focused on existing theories of copyright liability under the Copyright Act, while Mr. Randazza’s focused on a purportedly different, negligence-based theory of liability. According to Mr. Randazza, Plaintiff’s may sue the owner of an unsecured Wi-Fi connection based on a common law theory of negligence that is entirely distinct from existing theories of copyright liability.”

Ville Oksanen, Turre Legal, Finnish Court: Open WiFi Owner Not Liable for File-Sharing Copyright Infringement, May 14, 2012
“In a landmark ruling, a Finnish District Court . . . has today clarified the legal status of WiFi owners for internet file-sharing in the light of various pieces of EU legislation.”

“Finnish Anti-Piracy Centre, a coalition of entertainment industry rights-holders, had sued a Finnish woman for copyright infringement, demanding compensation of circa 6000 euros for internet file-sharing conducted with the Direct Connect (DC++) protocol through her internet connection.”

Mitch Stolz, EFF, Victory for Open WiFi: Judge Rejects Copyright Troll’s Bogus “Negligence” Theory, July 11, 2012
“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.”

Mitch Stolz, EFF, Copyright Trolls’ Bogus “Negligence” Theory Thrown Out Of Court Again, September 6, 2012
“Judges on both coasts of the U.S. have now rejected one of the copyright trolls’ favorite tactics—suing an Internet subscriber for ‘negligence’ when someone else allegedly downloaded a movie illegally. Judge Phyllis Hamilton of the Northern California federal court threw out a negligence suit by a Caribbean holding company against a Californian, Joshua Hatfield. The company, AF Holdings, had alleged that Mr. Hatfield allowed unnamed third parties to use his Internet connection to download a pornographic movie using BitTorrent, infringing copyright. Judge Hamilton ruled that Hatfield was not responsible for the actions of strangers. She joins Judge Kaplan of the Southern District of New York, who reached the same conclusions in another case in July.”

Mitch Stoltz, EFF, Tough Times for Trolls and their “Copyright Negligence” Scheme, December 20, 2012
“Despite at least five smackdowns by federal judges, copyright trolls are still accusing Internet subscribers of ‘negligently’ allowing someone else to download porn films without paying. Last week, subpoena defense attorney Morgan Pietz fought back by asking the Northern California federal courts to put all of the open ‘negligence’ cases filed by a prolific troll firm in front of a single judge—a judge who already ruled that the ‘negligence’ theory is bogus.”

Joe Mullin, Ars Technica, Brett Gibbs flips, backs sanctions against former Prenda Law colleagues, July 3, 2013
“The business of Prenda Law is ‘copyright trolling.’ The company has sued thousands of John Doe defendants for illegally downloading pornography, some of which Prenda itself is alleged to have placed on BitTorrent networks, and then pressuring them into settlements of a few thousand dollars without going to trial. But earlier this year, things went south for Prenda after a federal judge sanctioned the men behind the operation for various forms of ‘fraud on the court,’ even referring them to criminal investigators.”