In the US, if someone uses your internet connection and uses it for copyright infringing activity, are you also guilty of copyright infringement? That’s what one porn company is saying in one file-sharing lawsuit. The EFF has chosen to help defend this file-sharing case.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
Hypothetical question: If someone uploads copyright infringing content on a file-sharing network gets caught, are ISPs (Internet Service Providers) also guilty of copyright infringement under US law? To my knowledge, the answer is “no”. You have the DMCA (Digital Millennium Copyright Act) safe harbor provisions that guard against that. Unless you are selling your Internet services as a service to infringe copyright (as we’ve seen in the MGM vs. Grokster case) then, chances are, the provider qualifies for those safe harbor provisions. This is my interpretation of how copyright work in the US.
One porn company seems to, by extension, disagrees with that. Liberty Media Holdings (LMH) is currently suing two roommates for copyright infringement. One apparently downloaded a pornographic film, the other merely had ownership of the connection in question. LMH reportedly says that both roommates are guilty of copyright infringement. The EFF has taken up the case with the help of Ray Beckerman:
“This theory is absurd,” said EFF Staff Attorney Mitch Stoltz. “Decades of copyright law make it clear — to be guilty of infringement you have to do more than just provide an Internet connection — you have to contribute actively to the infringement. This is a ridiculous attempt at expanding copyright law so it’s easier for copyright trolls to extract more money from more innocent people.”
Copyright trolls attempt to game the legal process, using improper claims and procedures to pressure alleged copyright infringers into settling lawsuits against them even where they have legitimate defenses. If LMH is successful with this latest ploy, Internet users across the country would suffer. Every day, cities, cafes, libraries, schools, and individuals operate open Wi-Fi networks, sharing their connection with the public. This is a valuable public service, part of federal policy to promote universal, convenient access to the Internet, and also promotes public safety. But if Wi-Fi providers could be held responsible for users’ behavior, public access to the Internet would be sharply reduced because of liability fears.
“We’ve all been in a spot when we needed a few quick minutes online — when we were lost, for example, or had to send an urgent email,” said EFF Intellectual Property Director Corynne McSherry. “More open Wi-Fi is a public good that we should support. We can’t let the copyright trolls bend the law here. All of us who use the Internet throughout the day could lose out.”
Personally, I don’t see how the wi-fi hotspot owner could be guilty unless he encouraged the infringement under the current laws and precedent. The laws in this area could potentially change under the TPP (Trans-Pacific Partnership) where service providers are encouraged to fight infringement in order to qualify for those safe harbor provisions, but of course, if it’s inevitable, we are still a ways away from that. We are dealing with the laws and precedent of today, not tomorrow.
Drew Wilson on Twitter: @icecube85 and Google+.
