September 18, 2012
Court Says No Negligence Claim for Third Party Infringement via Open Wi-Fi Connection – AF Holdings v. Doe
[Post by Venkat Balasubramani]
AF Holdings, LLC v. Doe, C 12 2049 (PJH) (N.D. Cal.; Sept. 4, 2012)
I blogged about a case where a P2P infringement plaintiff argued that a defendant should be held liable for failing to secure their internet connection. (“No Negligence Claim for Infringement via Shared Internet Connection (Preempted by Copyright Act) – Liberty Media v. Tabora.”) A recent case presented the argument of whether you have a duty to secure your Wi-Fi connection (and police infringers) even more squarely. The court held that someone can’t be held liable for contributory infringement based on a negligence theory.
AF Holdings sued Doe and Hatfield. It did not assert any claims of direct infringement against Hatfield. Instead, it argued that Hatfield “had a duty to secure his internet connection,” and his breach of that duty meant that he could be held liable for the infringements of others.
The court rejects this argument, saying that AF is trying to hold Hatfield liable for his nonfeasance and this theory is only available where the parties have a “special relationship.” There’s no special relationship between AF and Hatfield and thus no duty.
The court also says that a negligence claim is preempted. Copyright preemption analysis requires an “extra element” in order for a claim to not be preempted. (The claim must have an extra element that’s not present in a copyright infringement claim.) The court summarily says that there’s no extra element because AF is ultimately seeking to prevent the exercise of one of its rights under the Copyright Act (copying and sharing). Casting this as a negligence claim does not save it from preemption.
The court also discusses Section 230 immunity. Strangely, AF argues that Section 230 shouldn’t apply because the negligence cause of action is not aimed at “offensive material.” The court sidesteps the Section 230 question in light of its other finding that there’s no duty and the claims are preempted.
Not particularly exciting, but this case presented the "negligence for failing to secure Wi-Fi" theory more straightforwardly than the prior case I blogged, so I thought the rejection of this argument was worth noting. It would have been nice for the court to have discussed the standards for derivative liability for infringement generally, and how negligence would lower this bar (and potentially open the floodgates), but this only received a passing mention from the court.