Tenant using P2P & Copyright Settlement

[cam9622]

Good morning,

My situation is similar to many others I've seen in various threads. Cease and desist email through my internet provider. Offer to settle.

However, my issue is that it is a tenant in a unit that I pay all services (electric, cable, internet, etc) for. It's easier to advertise the unit this way.

Based on what I've read the best thing so far is to NOT pay the settlement through their website or have my tenant do so, but to settle if it actually gets legal then to settle.

So to my actual question. As the person that pays the bill and I the liable party, or can it be proven that it was my tenant so the accountability falls to him. I work in child care and don't need a law suit involving inappropriate material with my name on it. I have a signed lease, and can likely prove I wasn't at the unit when he downloaded the files (claims of 9 so far). The tenant has also acknowledged to me that he did it, but that's obviously not on record anywhere.

Secondarily, if it comes to it could he try and blame the other tenant. I don't know how specific these IP trackers get.

I'm in Florida if that's helpful.

So far the relationship with the tenant is fine and I don't want it to get combative, but I obviously have to know how to protect myself. However, I don't have the money to lawyer up to protect myself from his activity.

Thank so much for anticipated thoughts and effort.

 

[quincy]

Good morning,

My situation is similar to many others I've seen in various threads. Cease and desist email through my internet provider. Offer to settle.

However, my issue is that it is a tenant in a unit that I pay all services (electric, cable, internet, etc) for. It's easier to advertise the unit this way.

Based on what I've read the best thing so far is to NOT pay the settlement through their website or have my tenant do so, but to settle if it actually gets legal then to settle.

So to my actual question. As the person that pays the bill and I the liable party, or can it be proven that it was my tenant so the accountability falls to him. I work in child care and don't need a law suit involving inappropriate material with my name on it. I have a signed lease, and can likely prove I wasn't at the unit when he downloaded the files (claims of 9 so far). The tenant has also acknowledged to me that he did it, but that's obviously not on record anywhere.

Secondarily, if it comes to it could he try and blame the other tenant. I don't know how specific these IP trackers get.

I'm in Florida if that's helpful.

So far the relationship with the tenant is fine and I don't want it to get combative, but I obviously have to know how to protect myself. However, I don't have the money to lawyer up to protect myself from his activity.

Thank so much for anticipated thoughts and effort.

You can be held liable for the copyright infringement of your tenant if you are the account holder, or you can be held liable for contributory copyright infringement.

For two landlords who found this out the hard way, you can look to Shapiro, Bernstein and Co. v. H.I. Green, Co., 306 F.2d 304 (2d Cir. 1963) and Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir 1996). Both rented/leased to infringers and had some knowledge that their tenants were infringing.

First, I am going to recommend you change your advertising. You do NOT want to be the account holder for a tenant's utility use. This should be the responsibility of the tenant. If you have not cut off the internet service to your tenant, you might be smart to do so now. Your tenant has put you in a very bad situation and this situation can affect your employment, depending on what has been illegally downloaded.

There are options available as to how to handle the notice of infringement. You definitely need to "cease and desist" or risk losing your own internet service entirely (although even if you stop the infringement, a cancellation of your account is still possible).

You do not want to respond to the notice by paying what has been demanded until you can have the facts of the infringement reviewed. The costs to you if you DON'T settle can be significant. A copyright holder can potentially be awarded in court statutory damages from between $750 to $30,000 per infringement or up to $150,000 per infringement for especially egregious infringement - and with NINE known illegal downloads, this is getting into very expensive territory. It is often, therefore, smart to negotiate with the copyright holder - but ONLY after you determine that the person or entity suing you has standing to sue and holds the copyrights to the infringed works.

I recommend you have an IP attorney personally look over the cease and desist notice you received (and SOON) so that you know how best to respond to the copyright holder. This is not something that should be ignored.

Good luck.

 

[Zigner]

First, I am going to recommend you change your advertising. You do NOT want to be the account holder for a tenant's utility use. This should be the responsibility of the tenant. If you have not cut off the internet service to your tenant, you might be smart to do so now. Your tenant has put you in a very bad situation and this situation can affect your employment, depending on what has been illegally downloaded.

In the future, a good approach may be to offer a rent credit for internet service (of course, cap it at a reasonable amount.)

 

[quincy]

In the future, a good approach may be to offer a rent credit for internet service (of course, cap it at a reasonable amount.)

That is certainly better for any landlord than becoming responsible for not only the bills but for the actions of the tenant.

The problem cam9622 has is that s/he DID make him/herself responsible by advertising free internet to entice tenants to rent. In doing so, cam9622 placed him/herself in the position where s/he needed to take reasonable precautions to keep the tenant from committing illegal internet activities, those that would violate the terms and conditions of cam9622's service provider contract.

Following are two links, the first to the Copyright Office's "Intentional Inducement of Copyright Infringement," which discusses contributory infringement and important cases, and the second to the Fonovisa, Inc. v. Cherry Auction case.

US Copyright Office: http://copyright.gov/docs/regstat072204.html

Fonovisa: https://www.law.cornell.edu/copyright/cases/76_F3d_259.htm

In the situation described here by cam9622, an attorney's personal review seems to me to be a necessary expense.

 

[Zigner]

That is certainly better for any landlord than becoming responsible for not only the bills but for the actions of the tenant.

The problem cam9622 has is that s/he DID make him/herself responsible by advertising free internet to entice tenants to rent. In doing so, cam9622 placed him/herself in the position where s/he needed to take reasonable precautions to keep the tenant from committing illegal internet activities, those that would violate the terms and conditions of cam9622's service provider contract.

Following are two links, the first to the Copyright Office's "Intentional Inducement of Copyright Infringement," which discusses contributory infringement and important cases, and the second to the Fonovisa, Inc. v. Cherry Auction case.

US Copyright Office: http://copyright.gov/docs/regstat072204.html

Fonovisa: https://www.law.cornell.edu/copyright/cases/76_F3d_259.htm

In the situation described here by cam9622, an attorney's personal review seems to me to be a necessary expense.

You'll get no argument from me...I was merely giving advice on how to keep the barn door closed for the next horse.

 

[FlyingRon]

I don't agree. In fact if you read the opinion in Fonovisa, you'll find that the analysis likely lends it NOT to apply to the case of tenant use of a household internet. Just because the unit is rented doesn't imply a duty to the landlord to search the tenants activities to make sure that they are, within the privacy of their own unit, not breaking the law. The rental of the unit is incidental to the internet activity. Vicarious liability has to show that the the defendant directly benefited from the illegal activity. In fact, in a subsequent case (Ellison v. Robertson), the court specifically doesn't hold the ISP (AOL in that case) responsibility and references Fonovision in the decision. Both these decisions are referenced in several other cases that decline to assign vicarious liability to the internet providers.

Sometimes you gotta "Shep" those cases you find via google to see how they were subsequently interpreted.

 

[quincy]

I don't agree. In fact if you read the opinion in Fonovisa, you'll find that the analysis likely lends it NOT to apply to the case of tenant use of a household internet. Just because the unit is rented doesn't imply a duty to the landlord to search the tenants activities to make sure that they are, within the privacy of their own unit, not breaking the law. The rental of the unit is incidental to the internet activity. Vicarious liability has to show that the the defendant directly benefited from the illegal activity. In fact, in a subsequent case (Ellison v. Robertson), the court specifically doesn't hold the ISP (AOL in that case) responsibility and references Fonovision in the decision. Both these decisions are referenced in several other cases that decline to assign vicarious liability to the internet providers.

Sometimes you gotta "Shep" those cases you find via google to see how they were subsequently interpreted.

In reading the Opinion, I found just the opposite. I disagree with your assessment. The rental of the unit is not incidental to the internet activity because free internet was the enticement to rent offered the landlord to the tenant. The landlord's ISP would not have notified the landlord of the infringing activity had the illegal internet activity not been directly tied to the landlord's account. The landlord took on the responsibility for the activities on his/her internet account.

But, of course, it is a difference of opinion that makes for a copyright infringement suit.

I am relying, in large part, on Dreamland Ballroom, Inc. v. Shapiro, Bernstein & Company, and you are apparently looking to Deutsch v. Arnold. The arguments presented in those cases are what no doubt would arise in any copyright infringement suit here should this make it to trial.

With luck, however, cam9622 will not have to argue this in court - as defense costs and the costs of a lawsuit loss for cam9622 stand to be far far greater than a settlement outside of court.

I did not say that the ISP was liable, by the way. It would be the landlord (the account holder) who could be/would be held liable for the copyright infringement (along with the tenant).

 

[FlyingRon]

No I'm using the case I mentioned plus a couple of other similar ones. I don't know why you insist on trying to shoehorn in non-internet cases into this situation when there have been a number of cases that use the Fonovisa as the standard and specifically find the opposite view that you hold. When there is some specific profit motive like the P2P software companies: Grokster, LimeWire, etc... yes they hold that the companies are getting a benefit from the fact their service is being used. When it comes to general places where the copying is incidental to the value of the service, it is not. The person didn't rent the apartment for the purpose of having a place to download illegal materials. That makes it different from a person who rents a table at a flea market with the expess purpose of selling counterfeit goods.

 

[quincy]

No I'm using the case I mentioned plus a couple of other similar ones. I don't know why you insist on trying to shoehorn in non-internet cases into this situation when there have been a number of cases that use the Fonovisa as the standard and specifically find the opposite view that you hold. When there is some specific profit motive like the P2P software companies: Grokster, LimeWire, etc... yes they hold that the companies are getting a benefit from the fact their service is being used. When it comes to general places where the copying is incidental to the value of the service, it is not. The person didn't rent the apartment for the purpose of having a place to download illegal materials. That makes it different from a person who rents a table at a flea market with the expess purpose of selling counterfeit goods.

And, once again I disagree with your assessment, FlyingRon. I provided access to the information that I think provides support for what I wrote (and what I provided also mentions the cases you are talking about in your posts). That said, I see how you are arguing this and can accept how you are looking at this, even though I see it differently.

But whether we disagree on this or not does not really matter - unless you think it somehow changes the advice offered to cam9622.

What matters is that cam9622 received a notice of infringement from his ISP and he needs to handle it. The holder of the copyrights has targeted his account because illegal downloads of copyrighted material were tracked to his account. cam9622 allowed another or others to use his account for free but cam9622 had control of the internet access at all times.

Can cam9622 be held responsible for the downloads? I think so. So can his tenant.

But whether all of this eventually falls on the tenant who used cam's account to illegally download copyrighted material or not, it is cam9622's ISP account that is in jeopardy, and cam9622 is the one who is likely to be taken to court if this matter is not settled, and it is cam9622 who should consult with an IP attorney in his area on how best to address the infringement notice - and he should speak with the attorney before he finds himself in court having to use your arguments to try to defeat the claims against him.