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Let’s beat this thing senseless. The Complaint you received says that you infringed on a copyright because you downloaded it through BitTorrent. Let us assume that you did not personally download infringing material, and that if someone else did it, you honestly had no idea. Let us also assume that infringing material was downloaded using your IP address. First, consider the possibilities.

Who else had access to your IP address? Obviously, anyone who used your computer. If your WiFi network is unsecured, anyone within a certain distance from your router. Also, anyone who has stolen your IP address (I don’t condone it, but it’s easily done). Most people don’t live alone, and most people share computers, or at least leave their computer unsecured and unattended some of the time. Your roommate, husband, wife, mother, father, child, or friend could have done it, and you would might never know. If you live near other people, they could have done it too! Also, as anyone with a smartphone knows, WiFi networks pop up everywhere when you’re driving around. It could have been someone in a moving car, or someone waiting to pick someone up in the road. The point is, there are a potentially unlimited number of suspects, many of them completely unknown to you.

But the demand letter probably says it doesn’t matter if someone else did it, you’re still on the hook! Why? Because f*#k you! The trolls want your money, and that’s that. Is that true? Not really. It takes a lot more than, “it happened, you’re liable, pay up.”

Specifically, contributory infringement requires:

1. Actual knowledge of the specific infringing activity, and
2. Intent, and
3. Inducing, causing, or materially contributing to the infringing conduct of another.

It probably also requires that the “system operator” actually knew that specific infringing material is available, and that the sysop could have taken measures to stop such damage, but continued to provide such access.  See MGM v. Grokster, 545 U.S. 91, 930 (2005), and Perfect 10, Inc. v. Amazon.com, 508 F. 3d 1146 (9th Circuit, 2007). Each element must be proven, or the claim fails.

The troll could also try vicarious infringement, which requires:

1. Profit from direct infringement, and
2. A right (and ability) to stop or limit the infringement.

Someone else downloaded porn, and you profited from it? Not likely. And who had the right or ability to stop anyone and everyone from using for WiFi? Short of unplugging the whole thing, it seems unlikely that you could stop such activity. I can’t even stop my 3 year old from using my computer. My wife? I certainly don’t have the ability, and I know I don’t have the right. It wouldn’t be a bad idea to secure your networks though, and for businesses to adopt policies forbidding such activities (though illegal activities are probably impliedly forbidden anyway).

We’re assuming that you’re basically an innocent here, but that unbeknownst to you, someone else used your IP to download some copyrighted porn. Unless you stupidly and carelessly admit knowledge of that actual downloading of material and that you did nothing to stop it, how the heck could they prove all those elements? It’s tough to imagine. That’s why prosecutors so rarely touch these cases. They’re a waste of time if the accused is willing and able to put up a strong defense. The trolls are trying to cast a wide net and snag a few unlucky souls willing to throw money at a problem. The meme, “Don’t feed the trolls” is appropriate, but I prefer to say, “Never give up, never surrender!”