- posted: Sep. 13, 2012
The copyright trolls had a bad day at the beginning of September, as Judge Phyllis Hamilton of the Northern District of California found that wireless router owners do not have a duty to secure Internet connections from outsiders.
The issue in AF Holdings v. Doe (Hatfield), US Dist Court, ND Cal. C12-2049 (PJH) is negligence. Can the owner of an Internet connection (like a wireless router, for example) be negligent in preventing third parties from using the connection to access and copy copyrighted content?
For there to be negligence, there first may be a duty. Automobile drivers, for example, have duties both to their passengers and third parties that they might encounter, not to injure them in any way. Employers have duties to their employees not to use machinery in a dangerous manner. However, Judge Hamilton ruled that there is no duty of the owner of an Internet connection to the owner of copyrighted content: "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."
Judge Hamilton put a further stake in the heart of AF Holdings' argument by finding that federal law regarding copyright and the Communications Decency Act supersede, or preempt, state and local law, meaning that local laws regarding negligence have no effect in terms of negligence for maintaining an internet connection.
Judge Hamilton's ruling does not mean that wireless router owners are now free to take off password protection from their wireless routers. Acting recklessly, knowing that somebody will use the router to download prohibited content, legally acts as a "knowingly" allowing someone to use your internet connection illegally, and that can be considered contributory copyright infringement. Moreover, allowing lots of people to use your connection will inevitably slow down the access that you paid for. Lastly, if someone is committing a crime using your wireless connection, you could have SWAT teams invading your home, and even Martha Stewart can tell you that that's NOT a good thing.