Issue link: https://read.dmtmag.com/i/303813
MAY 2014 20 THE JOURNAL COMMUNITY LAW BY DAVID BAKER Could Your Free Wi-Fi Cost You A Bundle? Wi-Fi is everywhere and much of the time it is offered for "free." Starbucks offers it. So, too, does McDonald's. In fact, you may even be offering it yourself. And, while many busi- nesses understand that it is a great way to bring in new customers and business, many do not understand the potential implications of allow- ing relatively unfettered access to the Internet. Recently, we've had a number of clients learn about the implications the hard way. They received what are known as DMCA "takedown" notices. And with those takedown no- tices, they have received demand letters from Bev- erly Hills law firms, movie studios, and television networks threatening law- suits and potential mone- tary damages reaching into the hundreds of thousands of dollars. Suddenly, free Wi-Fi access may not seem like such a great idea. DMCA Takedown Notices. Without getting too technical, DMCA is an acronym for the Digital Millennium Copyright Act of 1998, a federal law making it unlawful to pro- duce and disseminate technology, devices, or services intended to cir- cumvent measures that control access to copy- righted works (commonly music, movies, and television shows). The DMCA also provides an exemption from direct and indirect liability of Internet Service Providers ("ISP"s) and other intermediaries provided they adhere to certain guidelines, such as forwarding demand letters to their users when they received them from the owner of copyrighted material. By doing so, the ISP's can avoid liability altogether. Typically, the cause of the problem for clients has been misuse of the Wi-Fi by some- one who illegally downloaded a recent Holly- wood movie without paying for it or uploaded popular music they did not own or posted oth- erwise inappropriate material on the Internet. The problem for our clients has been that they were not di- rectly involved in the illicit ac- tivity, but they were the ones who furnished the Wi-Fi (and thereby access to the Internet) and by doing so created poten- tial liability for t h e m s e l v e s . Many of them have com- pounded the problem by not implementing and enforcing a p p r o p r i a t e "terms of use" for those they have allowed to use the Wi-Fi. A Recent Case. In one recent case, a client, who provides "free" Wi-Fi as part of its overnight rental agreement with visitors, re- ceived a DMCA takedown notice from its ISP alleging the purportedly unauthorized copying and distribution of a video depicting Kim Kar- dashian in an intimate moment. The takedown notice included correspondence from a Beverly Hills attorney who claimed to be acting on be- half of a copyright enforcement company and the alleged owner of the video content, an adult entertainment company. It was unclear from the notice and the letter if the video con- tent actually was owned by the entertainment company, but, significantly, the content had not been registered with the U.S. Copyright Office. Upon closer examination of the attorney's letter correspondence and additional research concerning the attorney's business practices and those of the copyright enforcement company, it appeared the attorney was acting on behalf of the copyright enforcement company and himself in the hopes of (a) securing a settlement with the client, and (b) impressing the entertain- ment company enough to convince it to con- tract with the copyright enforcement company for future enforcement of the entertainment company's sizable copyright library. Appar- ently, this has been a common practice for cer- tain attorneys and copyright enforcement companies since a series of class action lawsuits, resulting settlements, and court orders in cases involving the unlawful, unauthorized file shar- ing of content using BitTorrent technology file sharing. This has allowed them to pursue other potential infringers and thereby leverage mon- etary settlements from them. Premature Settlements. Through the use of "web crawlers (also known as "spiders"), copyright enforcement companies are able to identify certain unauthorized downloads of mul- timedia content and then pass along the infor- mation to attorneys who send a demand letter, citing copyright infringement, to the ISP for the address at which the download occurred which then sends along a copy of the demand letter Without getting too technical, DMCA is an acronym for the Digital Millennium Copyright Act of 1998, a federal law making it unlawful to pro- duce and disseminate technology, devices, or services intended to cir- cumvent measures that control access to copy- righted works (commonly music, movies, and televi- sion shows).