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

Some of the folks filing mass copyright infringement lawsuits have tried to claim that merely having an open WiFi connection on which someone else infringes on copyright-covered works is a form of negligence. Basically, they’re suing based solely on limited information — an IP address — and when those pursued point out that they have an open WiFi, the lawyers insist that this, alone, is a form of negligence. However, the courts aren’t buying it. In July, we wrote about a district court in New York rejecting this argument quickly, noting that the position was “untenable.”

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.

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.

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).

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.

Filed Under: copyright, copyright trolls, negligence, open wifi, preemption, section 230, wifi
Companies: af holdings

Judge Says Sniffing Unencrypted WiFi Networks Is Not Wiretapping

from the if-it's-freely-available... dept

There’s been a lot of discussion over the past few years concerning whether or not intercepting data on an open WiFi network is a form of “wiretapping.” This has been a central issue in one of the legal challenges to Google’s Street View cars collecting data from open WiFi networks. I’ve long argued that on such an open network, it shouldn’t be wiretapping because it’s wide open and available for anyone to see. Yes, that may be a security concern, but it’s one that an individual user can deal with. It certainly shouldn’t be illegal for someone to sniff that data. If you’re broadcasting something free and clear and I then read it… how is that wiretapping? Unfortunately, last year a judge in a case related to Google’s Street View capturing came to the opposite conclusion, but in a convoluted way where the court declared that WiFi is not a radio communication (even though it is).

However, in a totally unrelated case, a judge has now come to the exact opposite conclusion again, and noted that sniffing open WiFi is legal. The case is one that we’ve already talked about, though in a very different context. A patent troll called Innovatio IP has sued a bunch of businesses (hotels, coffee shops, restaurants) that offer WiFi to users, claiming that anyone using WiFi infringes, though it says “at this stage” it won’t go after individual users, only businesses. In trying to win its patent lawsuit, it wanted to use evidence from packet sniffing on some open networks, and asked the court to say that this is legal. And the judge has now said it is. First, unlike in the Google case, the judge has no problem recognizing that WiFi is electronic communication using radio waves. Then it points out that open WiFi quite clearly fits under the stated exception to the wiretapping laws, which is that they do not apply to “a system that is configured so that such electronic communication is readily accessible to the general public.” The judge then pushes back on the ruling in the Google case, noting that the judge there claimed that the data on an open WiFi network was only available via “sophisticated technology.” This judge isn’t buying it:

… upon examination, the proposition that Wi-Fi communications are accessible only with sophisticated technology breaks down. As mentioned above, Innovatio is intercepting Wi-Fi communications with a Riverbed AirPcap Nx packet capture adapter, which is available to the public for purchase for $698.00. See Riverbed Technology Product Catalog, http://www.cacetech.com/products/catalog/ (last visited Aug. 21, 2012). A more basic packet capture adapter is available for only $198.00. Id. The software necessary to analyze the data that the packet capture adapters collect is available for down load for free. See Wireshark Frequently Asked Questions, http://www.wireshark.org/faq.html#sec1 (last visited Aug. 21, 2012) (“Wireshark is a network protocol analyzer. . . . It is freely available as open source. . . .”). With a packet capture adapter and the software, along with a basic laptop computer, any member of the general public within range of an unencrypted Wi-Fi network can begin intercepting communications sent on that network. Many Wi-Fi networks provided by commercial establishments (such as coffee shops and restaurants) are unencrypted, and open to such interference from anyone with the right equipment. In light of the ease of “sniffing” Wi-Fi networks, the court concludes that the communications sent on an unencrypted Wi-Fi network are readily available to the general public.

While the court admits that many users probably don’t know their unencrypted data is subject to sniffing, that does not play into the analysis. The law doesn’t say whether or not the user’s perception matters. It only matters if the communications are “readily available to the general public,” which they are. Legal expert (especially on privacy issues) Orin Kerr disagrees with this ruling, claiming that the intent of whoever configures the network is what matters, but I’m not sure I buy that claim either. He compares it to early cordless phones that easily “leaked” data, noting that no one designed those systems to do that, and the same is likely true in most cases with open WiFi. But that’s pretty different. The case of unencrypted data on an open wireless network isn’t some sort of accidental leakage, it’s the basic nature of any open network.

Either way, I get the feeling this is not the last we’ll be hearing of these kinds of cases. Though, if you’re really worried about your data on open WiFi networks, there’s an easy way to deal with it: encrypt your data.

Filed Under: privacy, sniffing, wifi, wiretapping

If You Go To The Olympics, You Can Bring Your iPhone Or Android Phone… But You Better Not Tether

from the wireless-police? dept

Among the latest bizarre limitations that the Olympics puts on people is a ban on any sort of private WiFi network via your mobile connection. That is, you’re not allowed to tether your phone, turn it into a WiFi hotspot or use a device like a MiFi to create the same effect:

A first for any Olympic Games is the ban on personal or private wireless access points and 3G hubs, which are not allowed at London Olympics events and venues.

iPhones, iPads, and Android phones and tablets are permitted inside venues, but must not be used as wireless access points to connect multiple devices.

It’s possible (or perhaps likely) that this is done to help local mobile operators from having their networks overburdened, but, really, you’d think that the mobile operators would be out in droves with those “cells on wheels” (COW) vehicles that provide significantly more cellular power at high traffic events. Still, I’m curious as to how anyone enforces such a ban. It’s pretty easy to hide a MiFi. And turning your phone into a hotspot and slipping it back into a pocket would make it almost impossible to detect. The whole ban just seems pointless.

Filed Under: hotspots, olympics, tethering, wifi, wireless

Once More, With Feeling: Having Open WiFi Does Not Make You 'Negligent' Under The Law

from the hopefully-the-court-agrees dept

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.

Filed Under: liability, marc randazza, negligence, wifi
Companies: eff, liberty media

Australian Police To Go Wardriving, Telling People To Lock Up Their WiFi

from the but,-why? dept

Last fall, we wrote about some plans by the police in Austin, Texas to go wardriving to find open WiFi networks and pressure people into locking up those networks. After a bunch of people got upset about this, noting that open WiFi isn’t a crime, the police backed down. However, it appears other police don’t have any such qualms. As pointed out by Slashdot, police in Queensland, Australia are doing a similar wardriving campaign. The official announcement of the program greatly exaggerates the risk here:

Detective Superintendent Brian Hay said police have identified a large number of homes and businesses within the greater Brisbane area with wireless connections that are not secure or have limited protection. These people may as well put their bank account details, passwords and personal details on a billboard on the side of the highway.

Except that’s really not necessarily true. Banks and most sites that require passwords have long known to make use of SSL encryption. It’s not perfect, but it’s not posting your password on a billboard on the side of the highway by a long shot.

“Unprotected or unsecured wireless networks are easy to infiltrate and hack. Criminals can then either take over the connection and commit fraud online or steal the personal details of the owner. This is definitely the next step in identity fraud.”

That could be true in some cases, but it’s not absolutely true, and plenty of people can be perfectly safe using open WiFi with a few common sense precautions. It’s sad that the police would exaggerate like this.

Filed Under: australia, security, wardriving, wifi

What's The Most Expensive WiFi You've Seen?

from the ah,-tethering dept

I do a fair bit of traveling and, while I try to avoid it, there are times when I really have no choice but to pay up for WiFi (and why is it always the expensive hotels that charge more for it, while the cheap hotels offer free WiFi?). At times, the prices seem really crazy, but Parker sends over a screenshot of the cost of WiFi that he discovered at Toronto’s International Centre, which seemed a bit extreme: $6.95 for just 30 minutes. Or $99 for a full day. You could get the two day package for a bargain at $159. I’m not sure I want to know what the difference between “Ultra-Lite Wireless” (the prices you see here) and “Extreme Wireless” might be, but it seems doubly ridiculous to think that $99 per day only gets you “ultra-lite” wireless.

Anyway, I don’t think I’ve seen prices like that before, but I’m curious if anyone has any stories that can top that?

Filed Under: overvaluing, wifi

Everything Old Is New Again: 7 Years Ago Someone Else Tried To Sue WiFi Hotspot Operators Too

from the so-many-patents,-so-little-time dept

We recently wrote about a new patent troll called Innovatio, which was suing a bunch of coffee shops, restaurants, supermarkets and hotels, claiming that by offering WiFi hotspots, they were infringing on its patents. Glenn Fleishman reminded us of a very similar story from seven years ago, when Acacia (one of the biggest patent trolling operations out there), got some patents and went after various hotspot providers, similarly asking them to pay (relatively) small amounts ($1,000/year) to “license” the patents in question. The patents in question are different from the patents being used by Innovatio. However, if you think these two companies are the only ones to hold patents that cover some aspect of WiFi, think again. While, as far as I know, Acacia eventually gave up on this strategy, if Innovatio continues, just watch various patent holders come out of the woodwork. Operating a WiFi hotspot may mean getting hit up weekly to pay off the next round of patent trolls.

Filed Under: patents, wifi