No Duty to Secure Wi-Fi from BitTorrent Pirates, Judge Rules

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by Ernesto

A crucial ruling in one of the ongoing BitTorrent lawsuits in the United States has delivered a clear win for open Wi-Fi operators. Among other things, California Judge Phyllis Hamilton ruled that Internet subscribers are not required to secure their wireless networks to prevent outsiders from pirating movies. In other words, people can?t be held liable for the alleged infringements of other people on their network.

BitTorrent lawsuits have been dragging on for more than two years in the US, involving more than a quarter million alleged illicit file-sharers.

The copyright holders who start these cases generally provide nothing more than an IP-address as evidence. They then ask the courts to grant a subpoena which allows them to request the personal details of the alleged offenders from their Internet providers.

The problem with this scheme, however, is that the person who pays the Internet bills may not be the person who pirating the movie or song in question. Several judges have noted that an IP-address is not a person, much to the disappointment of copyright holders.

To counter this argument copyright holders have introduced the ?negligence? theory, arguing that Internet subscribers are liable when other people pirate files through their networks. This would allow copyright holders to sue people even when their targets haven?t committed an offense.

One of these cases was decided last week in favor of the Internet subscriber.

The case was started by adult video company AF Holdings who sued an Internet account holder called Josh Hatfield in a California federal court. AF Holdings claimed that Hatfield had a "duty to secure his Internet connection," and that he "breached that duty by failing to secure his Internet connection."

As a result, AF Holdings argued that Hatfield was liable for the copyright infringements that were committed by an unknown person. Mr. Hatfield disagreed with this claim, and argued that the copyright holder couldn?t prove that people are obliged to secure their wireless networks to prevent piracy.

In her verdict Judge Phyllis Hamilton sided with the defendant.

?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,? Hamilton writes.

?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,? she adds.

In addition to this lack of duty of care, Judge Hamilton ruled that even if negligence could be proven then ?personal injury? state law would be preempted by federal copyright law.

The ruling in the current case is similar to that of Judge Lewis Kaplan in New York earlier this year although perhaps even stronger ? Judge Hamilton specifically rules that Internet subscribers don?t have an obligation towards copyright holders to secure their Wi-Fi.

The Electronic Frontier Foundation (EFF), who have helped out many alleged BitTorrent pirates over the years, are happy with the outcome.

?This ruling, along with the Tabora ruling in New York, send a strong judicial message that copyright owners can?t use legal tricks to bypass the law?s protections for Internet access points,? EFF?s Mitch Stolz writes.

?There are still many open cases in the federal courts where copyright owners are trying to use this bogus legal theory,? he adds.

The ruling is definitely a setback for the many copyright holders who jumped aboard the lucrative BitTorrent lawsuit bandwagon. Should more judges reach the same conclusion in future cases the end of this type of lawsuit in the U.S. may very well be near.

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IP-Address Can't Even Identify a State, BitTorrent Judge Rules

by Ernesto, TorrentFreak

The mass-BitTorrent lawsuits that are sweeping the United States are in a heap of trouble. After a Florida judge ruled that an IP-address is not a person, a Californian colleague has gone even further in protecting the First Amendment rights of BitTorrent users. The judge in question points out that geolocation tools are far from accurate and that it?s therefore uncertain that his court has jurisdiction over cases involving alleged BitTorrent pirates. As a result, 15 of these mass-BitTorrent lawsuits were dismissed.

In recent years more than a quarter million people have been accused of sharing copyrighted works in the United States.

Copyright holders generally sue dozens, hundreds or sometimes even thousands of people at once, hoping to extract cash settlements from the alleged downloaders. The evidence they present to the court is usually an IP-address and a timestamp marking when the alleged infringement took place.

Early 2010, when these mass-lawsuits began, copyright holders targeted IP-addresses from all across the US in single lawsuits. This led some judges to dismiss cases because their courts have no jurisdiction over people who live elsewhere.

As a result, copyright holders switched to a new tactic. Before filing a suit they ran their database of infringing IP-addresses through so-called ?geolocation? services so they could argue that the defendants most likely reside in the district where they were being sued.

This worked well for a while, but a new ruling by California District Court Judge Dean Pregerson puts an end to this new approach, killing 15 lawsuits in the process.

According to Pregerson, alleged BitTorrent pirates are protected by the First Amendment as they are ?engaging in the exercise of speech, albeit to a limited extent.? Therefore, the copyright holder?s request to identify anonymous internet users has to meet certain criteria.

One of the requirements is that it?s absolutely clear that the accused are residents of the region where the court has jurisdiction, but according to Judge Pregerson it is not sufficient to use the results from a ?geolocation? tool to prove it.

In a previous order the copyright holder ? movie company Celestial Inc. ? was asked to convince the court of the accuracy of these tools. In a reply Celestial referred to a website which contained some general claims as well as a quote from the company that collected the evidence, but it wasn?t enough.

?Based on Plaintiff?s own reliability claims, there may still be a 20 to 50 percent chance that this court lacks jurisdiction,? Judge Pregerson writes in his order.

The Judge adds that even if there is a slight chance that these tools are wrong, he simply can?t sign off on the subpoena request.

?Even if the most advanced geolocation tools were simply too unreliable to adequately establish jurisdiction, the court could not set aside constitutional concerns in favor of Plaintiff?s desire to subpoena the Doe Defendants? identifying information.?

?Again, it is the First Amendment that requires courts to ensure complaints like this one would at least survive a motion to dismiss, before the court authorizes early discovery to identify anonymous internet users.?

The IP-address lookups and additional information provided by Celestial Inc. can?t guarantee that the defendants do indeed reside in California, and Judge Pregerson therefore dismissed the 15 mass-BitTorrent lawsuits the company filed at his court.

It also means the end of mass-BitTorrent lawsuits in the Californian court, as no geolocation tool is 100% accurate.

While the ruling doesn?t mean the end of all mass-BitTorrent lawsuits in the US just yet, it appears that there?s a growing opposition from judges against these practices.

For example, two weeks ago we reported on a related ruling in which a Florida judge dismissed several cases because an IP-address doesn?t identify a person. In other words, even when a court has jurisdiction, the copyright holder can not prove that the account holder connected to the IP-address is the person who shared the copyrighted file.

If other judges adopt either of the rulings above, it means the end of mass-BitTorrent lawsuits as we know them.

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