HAMILTON, Ohio — Is leaving your Wi-Fi connection open "negligent"?
More attorneys are saying yes, and some have even added negligence claims to BitTorrent suits that allege poached content.
One defendant named in a recent BitTorrent suit recently was ordered to pay $10,401 despite statements that he never downloaded or uploaded any of the porn studio's content. In the judgment, he acknowledged his negligence for not securing his connection.
That case, among others, is a cautionary tale for those who don't lock down their connections to the outside world, or even inside their home or office.
Take, for instance, the case of Doe No. 605, who is defending a porn BitTorrent copyright claim with 2,009 other defendants in a claim brought on by adult studio Third Degree Films.
Last week, Doe No. 605 asked a federal judge to quash a subpoena for his identity because he said he had no control over who accessed his Internet connection to steal content inside his home.
Doe No. 605 said that other roommates in his Ohio three-story home could easily been able to have access and download copyright-protected porn.
"The likelihood that an individual, other than Doe No. 605, infringed plaintiff’s copyrights is too great to support any correlation between Doe No. 605 and the alleged violation that plaintiff seeks to prove," Doe's motion to quash brief said.
But that defense is horse manure, some attorneys say.
"I've seen this argument for a motion to quash time and time again," adult industry attorney Marc Randazza told XBIZ. "The attorney defending the Doe simply is looking for a guilty party, and it's not the defendant."
Randazza has compiled a paper (available below) titled "Why Negligence in Torrent Cases?" that explores the risks associated with not locking down your Wi-Fi connection.
"The vast majority of Americans recognize that leaving their Wi-Fi connection open is foolhardy and likely to lead to trouble," Randazza says. "I have heard other lawyers compare leaving your Wi-Fi open to leaving a loaded gun lying around. I think comparing open Wi-Fi to a loaded gun is overly melodramatic and hysterical.
"However, the point is well taken — you are leaving the instrumentality of an illegal act out there for anyone to use."