No Negligence Claim for Infringement via Shared Internet Connection (Preempted by Copyright Act) – Liberty Media v. Tabora

[Post by Venkat Balasubramani]

Liberty Media Holdings, LLC v. Tabora & Whetstone, 12 Civ. 2234 (LAK) (S.D.N.Y.; July 9, 2012)

A question that was floating around in the blogosphere was whether you can be sued for maintaining an open wi-fi connection where a third party engages in file-sharing using your connection. A district court judge in New York answered that question in the negative. (This case involved a shared internet connection, rather than open wi-fi, but this shouldn’t change the result.)

Liberty Media sued Whetstone and Tabora, who were roommates. Liberty alleged that Whetstone “regularly pirat[ed] copyrighted content.” Liberty alleged that Tabora “knowingly participated and . . . declined to put a stop to Whetstone’s [alleged infringement,] despite having had the ability to have done so.” Although Liberty asserted claims for direct and contributory infringement against both defendants, it also asserted a claim for negligence aginst Tabora.

The court says that the negligence claim against Tabora is preempted by the Copyright Act:

[t]he right that Liberty seeks to vindicate by its state law negligence claim – the imposition on one who knowingly contributes to a direct infringement by another – already is protected by the Copyright Act under the doctrine of contributory infringement.

I initially read the order as dismissing the claims for direct infringement based on the fact that the pleadings didn’t adequately state a claim for direct infringement against Tabora, but Marc Randazza (GC for Liberty Media) pointed out via email that the court dismissed the claims for direct infringement (with leave to amend) due to a discrepancy in the title of the work at issue. Although the court doesn’t squarely address Liberty’s claim for direct infringement against Tabora, it dismisses the complaint against Tabora in its entirety. This can be read to mean that the mere provision of an internet connection isn’t sufficient to satisfy the test for contributory infringement. This makes sense, as standing alone, it would be a pretty expansive theory of infringement to argue that merely making available an internet connection is sufficient to trigger liability for the acts of those using the connection.

See also: this post from EFF (Corynne McSherry) as to why this theory is unlikely to gain much traction and shouldn’t even be viewed as debatable. The post also mentions a Section 230 barrier which the court did not need to reach in this case. (EFF also filed an amicus brief in this case, which you can access here.)

[Note: I corrected the last paragraph and added a parenthetical to the first paragraph.]