HTC has, quite rightly, decried the insanity of the patent thicket in the smartphone arena. In fact, some clueless analyst had written a note suggesting that HTC was at risk because it didn't have enough patents. The idea that quantity of patents matters is a really scary thought, but with the way the patent system works today, companies who have no desire to own patents are increasingly being pressured into doing so. Thus, HTC has been in the process of getting its hands on as many patents as possible, both by ramping up its own patent application filings, and by buying others patents (such as via the purchase of S3).

As someone who has used a bunch of HTC phones over the years, all of this is pretty depressing. I'd much rather the company focus on doing what it does best: building cool smartphones and devices. While our broken system may be forcing it to invest in patents (and patent litigation), wouldn't we all be better served by letting it (and others) focus on building cool products to compete in the marketplace? Or is that just too old fashioned an idea?

Over a year ago, we wrote about an attempt by a porn company, Liberty Media, to sue a bunch of people it accused of infringing on its copyright. The case had many similarities to copyright trolling lawsuits, but there was one claim in particular that we found quite troubling: the idea that not securing your WiFi was a form of negligence. The lawyer representing Liberty, Marc Randazza, is someone I know and like, and who I normally find on the good side of lots of cases (and, in fact, I've sent people his way when they've been looking for good lawyers). When news came out that someone had "settled" with the company and the vast majority of the amount the person agreed to pay was for that "negligence," we found it quite problematic and told Randazza we were planning to write about it. In response, he sent a long email to both me and Torrentfreak -- which they published as a guest opinion -- defending why an open WiFi qualifies as negligence. I wrote back a response as to why I thought he was completely wrong on this one.

And, now, a court may be deciding the same thing. The EFF has filed an amicus brief in what I believe is a related case arguing that this theory of negligence is ridiculous (Update: Randazza informs me that he's not counsel on this particular case and says that the negligence claim here is quite different and, contrary to the EFF's claim has nothing to do with open WiFi. Instead, the negligence theory put forth focused more on the fact that the guy being sued was aware of infringement on his WiFi and still allowed the user to use it -- more on that below). Here's just a snippet from the lawsuit:

LMH’s theory of liability cannot withstand even passing scrutiny. No matter how artfully pled, LMH’s claim sounds in, and is preempted by, copyright law. And as decades of copyright jurisprudence and legislation make clear, that body of law does not recognize a cause of action based on mere negligence. Accordingly, no court has ever found, or could ever find, that anyone has violated copyright law simply because another user of his or her Internet connection did so.

And that is a good thing. Every day cafes, airports, libraries, laundromats, schools and individuals operate “open” Wi-Fi routers, sharing their connection with neighbors and passers-by at no charge. Sometimes people use those connections for bad acts. Most of the time they don’t, and the world gets a valuable public service of simple, ubiquitous Internet access.

Creating a duty under tort law to prevent others from infringing copyright would drastically inhibit this activity, to the detriment of the general public and clear federal copyright and telecommunications policies promoting convenient, universal access to the Internet. Thus, manufacturing a new copyright cause of action based on negligence – which, make no mistake, is precisely what LMH asks the Court to do – would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

It would be nice to have a clear statement from the court on this matter, clarifying that merely having open WiFi -- as thousands upon thousands of individuals and businesses do -- is not a sign of "negligence" that automatically makes you liable for any infringement done on those networks.

Update: As I put in the update above, there is some argument over whether or not the case is even about open WiFi, but I think that the EFF's point still stands and fits the facts of the case. Even if we're talking about a situation in which a WiFi network owner knew someone was infringing on their WiFi, it is still a huge stretch to argue negligence on their behalf for allowing the usage of the network to continue, and that negligence claim could carry over to the question of open WiFi. As the EFF notes in its filing, using negligence as a theory related to copyright creates an entirely new theory of copyright liability not seen in the statute and with a significantly lower bar than existing theories of secondary liability in copyright. Thus, expanding negligence to cover liability in a copyright claim could have a massive impact beyond just the individuals in this case.