Wi-Fi case could make users liable
BOSTON — A civil complaint filed in U.S. District Court could set a costly precedent for anyone whose wireless Internet router is not secure, making them liable for the wrongs committed by anyone who uses it.
Liberty Media Holdings, a San Diego-based media company, is suing 13 named Massachusetts Internet subscribers and as many as 59 “John Does” for copyright infringement because their Internet signal was used to download the pornographic movie “Down on the Farm” with BitTorrent, a peer-to-peer protocol for file sharing.
The lawsuit only contains names of some defendants, identifying them just by their Internet provider codes.
The defendants face statutory damages from $3,000 minimum including the attorney fees and $15,000 at the maximum.
“Defendants’ failure to secure their Internet access accounts, and thereby prevent such illegal uses thereof, constitutes a breach of the ordinary care that reasonable persons exercise in using an Internet access account,” alleges the complaint, filed Monday by Amesbury attorney Aaron Silverstein.
Marvin Cable, a Northampton attorney who represented one client who settled with Liberty Media and dozens of others in similar cases, said there is no legal precedent for such claims of negligent copyright infringement in Massachusetts. Some of the Internet subscribers said they had an open Wi-Fi connection and did not directly download nor infringe the copyrights.
“If the judge allows the claim of negligence to be valid, any person could be held liable for not securing their Internet access,” he said.
Cable said the case could have consequences for businesses or public entities, such as libraries that offer free Wi-Fi access holding them liable for what users do on their networks. As a result, they could decide to close their networks or stop providing Wi-Fi access.
MetroWest Wi-Fi providers said they have not faced the issue before.
“Our Wi-Fi access is opened to the public, there is no password,” says Laura Chrzanowski, library assistant at Marlborough Public Library. “Some people even use it on the parking lot after the library closes.”
Jane Savas, owner and founder of Pejamajo Café in Holliston said her customers need permission to access her shop’s site.
“We haven’t had any problems thus far. Guests do have to type in a code, but they can easily ask for it,” she said.
Cable says that it might not be enough.
“It’s not totally clear whether or not there should be less liability, but even with a closed Wi-Fi access they could still be held liable for those who have the access to it,” he said.However, the Online Copyright Infringement Liability Limitation Act, part of the Digital Millennium Copyright Act, a federal copyright law, says “any provider of a network is not liable for others.” This act, also called the “safe harbor” of the copyright law, balances the interests of both the plaintiffs and the defendants.
Cable says that the best way for the defendants to win maybe with a constitutional argument, called implied preemption. Specifically, the federal legislation of the Copyright Act preempts the state law claim of negligence. The answer will be known in three weeks.