A few weeks back, we wrote about a lawsuit involving porn company Liberty Media, once again trying to make a negligence claim
against the operator of a WiFi network, because someone else had downloaded infringing content on that network (and, in this case, apparently the owner of the network was aware of this). As we noted, the EFF was troubled by this line of reasoning and filed an amicus brief arguing that the negligence theory would set a dangerous precedent. The court has now ruled and rejected the negligence theory
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 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.
The court dismissed the entire complaint, but more on a technicality (the work named does not match the registered copyright). But it certainly appears from this ruling that the negligence
claim (and others like it) are dead issues. Someone could, conceivably be sued for contributory infringement for how they run the network (if they actively participate), but negligence? Nope.