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Sharing Internet with a Copyright Infringer: Negligence and the "Open Wireless Movement"

Posted By Dominick Severance, Feb 5, 2013

On April 27, 2011, the Electronic Frontier Foundation (EFF) issued a statement calling for an “Open Wireless Movement” where every internet subscriber left their internet open (i.e. non-password protected) for anyone to use. But while open internet sounds like a tremendous good for society (free internet everywhere!), there is the legal question as to what extent subscribers are liable if someone were to use their internet connection to illegally downloaded copyrighted material?

Shortly after the EFF’s call for an “Open Wireless Movement,” two federal judges ruled on this very issue. The first case, Liberty Media Holdings, LLC v. Tabora & Whetstone, concerned two roommates, Cary Tabora and Schuyler Whetstone, who shared an internet connection. Although Whetstone was the one who ultimately used the internet connection to illegally download copyrighted material, the plaintiff, Liberty Media Holdings, sued Tabora as well under a state law negligence theory. Liberty reasoned that Tabora was negligent because he knew Whetstone was committing copyright infringement and did nothing to stop it.

In the second case, AF Holdings, LLC v. Doe & Botson, the defendant filed suit against the owner of an open internet wifi network, John Botson, and a John Doe. At no point did AF Holdings claim that Botson committed copyright infringement himself. Just as in the Liberty Media Holdings case, the plaintiff used state negligence law in filing suit against Botson. AF Holdings claimed that Botson was negligent for leaving his wifi network open, which allowed someone to use it infringe.

In both cases, the judges held that Section 301 of the federal Copyright Act preempted state negligence laws. The judges reasoned that the state negligence laws were basically just inferior versions of federal contributory copyright liability claims when applied to the facts of the cases. Contributory liability is when the owner is actually making material contributions to those who are infringing except when the contributions are capable of substantial noninfringing uses. Since the internet is capable of many substantial noninfringing uses and Tabora and Botson made no other contributions to assist the infringement, the exception applied in both cases.

In an article speaking out about the issue of negligence and copyright law, the EFF wrote that even if there was a negligence theory, Congress has provided immunity for the providers of internet service through the Digital Millenium Copyright Act (DMCA). In section 512(a) of the DMCA, Congress immunized internet service providers from liability for the copyright infringement of users as long as the infringing material is automatically processed without input or modification by the provider. The EFF argues that consumers who participate in the “Open Wireless Movement” are protected by 512(a) because the subscribers are acting as internet service providers - maybe not on the scale of Comcast, but a provider of internet service nonetheless.

The “Open Wireless Movement” has a noble goal and it is reassuring knowing that the law is understanding of those who are kind enough to share their internet with others. However, leaving a wifi network open has led to more than just legal trouble. The more users on the network, the more likely the bandwidth will struggle to keep up (except if you live in a Google Fiber-hood!). Moreover, an open network leaves the subscriber more vulnerable to hackers getting access to the subscriber’s personal files. Devices exist to help with both of these issues, however, the average internet subscriber will know little to nothing about setting up a prioritization and tweaking the security systems on their router. Thus, subscribers participating in the “Open Wireless Movement” should not only think about the law but also think about these technical issues before choosing to maintain an open network.

Source (Eric Goldman Blog): http://blog.ericgoldman.org/archives/2012/09/court_says_no_n.htm

Source (Eric Goldman Blog): http://blog.ericgoldman.org/archives/2012/07/copyright_act_p.htm

Source (EFF): https://www.eff.org/deeplinks/2011/08/open-wifi-and-copyright-liability-setting-record

Source (EFF): https://www.eff.org/deeplinks/2011/04/open-wireless-movement/

Source (EFF): https://www.eff.org/sites/default/files/Tabora%20Dismissal%20Order.pdf

Source (Copyright Office): http://www.copyright.gov/title17/92chap5.html#512

Source (Digital Commons): http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1207&context=historical