Copyright Infringement Advisor

Negligence Can’t Support Contributory Copyright Infringement

Posted in Infringement Defenses, Interesting Cases, Open Wi-Fi

Open wi-fi not negligent

Earlier I commented on a Finnish court that ruled leaving a wi-fi router open cannot, as a matter of law, give rise to copyright infringement by a third party.  That’s great if you live in Finland, what about us in the U.S.? Well, things are starting to look good here too.

As reported recently by FightCopyrightTrolls, a judge in Manhattan just dismissed a case that was brought by Liberty Media Holdings against Cary Tabora and Schuyler Whetstone.  Liberty brought a claim for negligence against Tabora.  Liberty argued that it was negligent for Tabora to let Whetstone use his internet connection to download copyrighted movies.

Judge Kaplan wrote a great opinion that basically shut down that negligence claim for good.  First, Judge Kaplan pointed out that someone can’t be liable for contributory copyright infringement unless they actually have knowledge of the infringing activity.  It’s not enough for contributory infringement that he could have known. Then, Liberty couldn’t bring a simple negligence claim against Tabora under state law because the federal copyright law preempts state law. In other words, Liberty can’t avoid the higher burden of proof of copyright law by bringing a claim of negligence, which has a lower burden of proof.

This is good news for us.  That same line of reasoning applies to the situation where someone has an open wi-fi router and someone else uses their internet connection to download or upload movies. If you can’t be found negligent for actually allowing someone to use your internet connection, then you certainly can’t be found negligent if you don’t even know that a stranger is using it. In other words, these claims that you are negligent for leaving your wi-fi connection open are bogus.  Negligence can’t support a contributory infringement claim.  You have to have actual or constructive knowledge of the infringement.

That case might not directly address the open wi-fi situation like the one in Finland did, but it’s close and it went the right way.  Let’s hope that when a U.S. Court gets a case that is right on point, they don’t lose their minds.