We asked two copyright lawyers this question, and both came out with a different opinion.

Nicholas Ranallo said NO, but Marc Randazza disagreed and said YES.

The Electronic Frontier Foundation initially watched the ‘debate’ from a distance but has now weighed in with their take on the situation. Perhaps not surprisingly, they disagree with Randazza.

Below we post EFF’s take in full .

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Last week, TorrentFreak ran an interesting pair of posts offering opposing views on an issue that has become increasingly important with the rise of the copyright trolls: whether a person who runs an open wifi network can be held liable when others use the network for copyright infringement.

The problem with “online debates” like this is they can leave folks with the false impression that there are two equally valid approaches to a legal question. In this case, there aren’t. The truth is that no court has ever found that anyone is liable simply because another user of his or her open wifi committed some legal wrong. Every day cafes, airports, libraries, laundromats, schools and individuals operate open wifi routers, happily sharing their connection with neighbors and passers by. Sometimes people use those connections for bad acts, most of the time they don’t, the world gets a valuable public service, and the open wifi providers are not liable.

One essay, by attorney Nicholas Ranallo, recognizes as much. Ranallo reviews the standard theories of copyright liability and concludes that no, operating an open wifi network does not make you liable for the activities of others using the network. The other piece, by attorney Marc Randazza, ignores those traditional theories in favor of an unprecedented claim based on negligence and a 1932 case about boats.

It’s a creative theory. It’s also wrong.

First, there is no negligence theory of copyright liability. Zip, none, nada. Only direct, vicarious and contributory (which includes inducement) (check Ranallo’s post for details on these). In fact, at least one federal judge has opined that the latter theories, called secondary or indirect liability, are also legally improper.

Second, even if there were such a theory, the operators of an open wifi network are a mere conduit for the communications of others, and often enjoy statutory immunities. Under the Digital Millennium Copyright Act, there is a safe harbor for service providers who offer “the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” That definition fits a provider of free public wifi as easily as a traditional DSL provider. Therefore, the open wifi operator may be able to claim the “safe harbor” protection from copyright liability offered by Section 512(a). There are certain prerequisites for this protection, but they are not difficult to meet.

Perhaps hoping to avoid this limitation, the essay suggests that operators can be held liable under a general tort theory of negligence (meaning, it’s not a copyright claim, just a general injury claim). But that approach immediately crashes against another legal wall. Section 230 of the Communications Decency Act offers broad immunity from tort claims (including negligence) to providers of “interactive computer services” for claims arising from the activities of their users. The statute’s broad definition of interactive computer service includes “specifically a service or system that provides access to the Internet.” (emphasis added).

We would be shocked if any federal judge affirmed this negligence theory, and, even if a trial court judge did make the error, it would surely be corrected on appeal.

Unfortunately, no judge may ever be able to rule on it. The piece sets out one reason why: if a defendant claims the alleged infringement was the result of others using his network, the copyright owner may attempt to seize all of the defendant’s computers and depose his family, friends and neighbors. (Indeed, Randazza ominously touts avoidance of these heavy-handed tactics as a “benefit” of accepting his odd legal theory.) Query whether these tactics would be legally proper, for a host of reasons that go beyond this particular post, but for many open-wifi network operators, the expense and hassle of mounting a perfectly valid defense will not be worth the candle.

Randazza claims this negligence theory helps his clients enforce their rights against individuals who use the “open wifi defense” as an excuse to avoid liability for their own infringing activities. However, dishonest defendants are not a new problem for the law, and the solution is not to conjure up meritless legal claims that intimidate honest wifi operators.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

More than a year after the first case was filed there is still very little consensus in the rulings handed down by various judges. Some simply side with the copyright holders, allowing them to contact the Internet providers of the alleged infringers to obtain their personal details. Other judges have dropped cases, arguing that they were filed in the wrong jurisdiction or that an IP-address is not a person.

Hoping to get a case at the Indiana Southern District Court dropped as well, a Doe who saw his IP address listed in the court documents wrote to the judge. The case in question is Hard Drive Productions vs. Does 1-21, which accuses 21 does of sharing adult content via BitTorrent.

Most of the judges have no clue that the copyright holders who file these lawsuits are not really seeking a full trial, but merely want to collect settlements. The Doe in question explains this in the letter to the judge, and adds that the evidence the copyright holders claim to have is highly unreliable.

“These lawsuits have been rife with shoddy ‘evidence’ accumulation and wrongful harassment of Internet subscribers with no effort or evidence to identify the actual infringer behind an I.P. address rather than just demanding money from the person registered as the subscriber of the Internet connection,” the letter begins.

In his letter the Doe further stresses that running an open wireless network is not a crime, weakening the claims of the copyright holders even further. People have the right to offer an open connection to outsiders. There is no law that prohibits it and there are several wireless routers that have a second (unsecured) connection as a feature.

“I hope and plead with you to consider the interests of neighbors in being able to have friends over with their laptops without having to draw up legal agreements and waivers before they can connect to the Internet and share our I.P. address.

“Not all unsecured networks are due to a lack of technical knowledge. Some of us leave them open to friends and others out of a sense of community. An Internet connection is an important thing for people today, for better or for worse. I fear that we are on our way to having Internet connections become like so many things in our country that must be locked up and hidden out of fear an intimidation,” the letter continues.

The Doe in question is right. Unless an Internet provider explicitly forbids unsecured wireless networks there is nothing wrong with running one. The person who pays for the account is not automatically responsible for all those who use it, but allowing copyright holders to continue their pay-up-or else scheme does put account holders at risk.

The letter sent by the Doe didn’t go unnoticed by the anti-piracy lawyers. Interestingly, however, their response didn’t dispute any of the arguments put forward, but merely discredited the source of the letter. According to attorney Raphael Whitford, the judge is being misled by pro-piracy activists.

“It is highly unlikely that this letter was written by one of the defendants in this case as the writer proclaims. The complaint was filed on May 20th and the anonymous letter was written less than two weeks later, before any discovery action was taken by plaintiff.”

“It is difficult to imagine one of the defendants stumbling across the exhibit attached to the complaint, and identifying their own IP address as one listed, in that timeframe. Counsel for the Plaintiff believes the letter to be submitted by a pro-piracy organization with an agenda of keeping the internet as a safe-haven for copyright infringement,” Whitford writes.

The judge has not yet responded to either of the letters, but the Doe who is accused of being part of a pro-piracy lobby did. In yet another submission to the court the Doe refutes the claim, while fanning the flames even more.

“I do not support piracy any more than I support abuse of the legal system to enable extortion and threatening pay-up-or-else schemes,” the Doe writes in another lengthy letter.

A few days later this was followed by another letter which appears to come from the same person, discrediting the copyright holder’s evidence again. In this letter the Doe also attaches rulings where federal judges have dropped similar cases because IP addresses don’t equal a person.

The plaintiffs attorney nor the judge have responded to these last two submissions.

It will be interesting to see how and if the actions of this lone Doe will be received by Judge Sarah Barker. The good thing is that the judge is now at least aware of the true intentions of the copyright holders, and the fact that granting the subpoenas pretty much kills the right to run open wireless networks.

The future will tell if it made a difference.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.