Yet Another Court Says You're Not 'Negligent' If Someone Uses Your Open WiFi To Infringe
from the shutting-down-that-line-of-argument dept
And now a California district court has ruled similarly, completely rejecting the negligence theory on three different points. First up, there is no negligence because negligence requires a relationship and a duty to protect, but no such relationship exists between the copyright holder, AF Holdings, and the defendant in the case:
AF Holdings has not articulated any basis for imposing on Hatfield a legal duty to prevent the infringement of AF Holdings’ copyrighted works, and the court is aware of none. Hatfield is not alleged to have any special relationship with AF Holdings that would give rise to a duty to protect AF Holdings’ copyrights, and is also not alleged to have engaged in any misfeasance by which he created a risk of peril.Even ignoring that, the court is skeptical. Noting that even if there was a negligence claim it would be unavailable in this case, because of copyright "pre-emption" (basically, federal copyright law wipes out any state statutes that seek to do the same work).
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.
AF Holdings is seeking to protect its “exclusive rights” from “copying and sharing.” Simply recharacterizing the claim as one of “negligence” does not add a legally cognizable additional element.... Thus, because AF Holdings alleges that Hatfield’s action or inaction constituted interference with its “exclusive rights in the copyrighted work,” the negligence claim is preempted by § 301 of the Copyright Act.And then the court goes even further, and says that even if the first two theories don't kill the negligence claim, there's also Section 230 of the CDA, which we've discussed for years. While the Section 230 safe harbors (protecting a service provider from liability concerning the actions of their users) technically does not apply to intellectual property issues, the negligence claim is not an IP law issue, and thus gets wiped out thanks to Section 230 immunity.
Basically, the idea that you're negligent if you leave your WiFi open and someone else uses it to infringe seems dead in the water.