Moot Court Topic: TV Shows and Unsecured Wireless Networks

I'm doing Moot Court this semester. Moot Court is a mandatory project (worth 0 credits) designed to improve writing and argumentation. Students are all paired up into teams. Each team is given the facts and history of a case, and is assigned to write a brief arguing for one side on appeal. Each team is matched up against another team arguing on the opposite side of the case. Once the briefs are written and submitted, the teams present their briefs and argue their cases before a panel of judges. Somebody wins, somebody loses, there's a lot of criticism, hard work, and heart-ache, and in the end everybody passes. It has absolutely no impact on your future because it's a pass/fail requirement worth 0 credits.

Nonetheless, the topic my partner and I are working on is somewhat interesting. Here are the (highly abbreviated) facts. Note that I have expunged all of the proper names from these facts, because the original names were annoying and distracting:

Plaintiff #1 is a publishing company in San Francisco, located on Market Street. Sometime in 2004 they set up a wireless network for their office. They didn't hire a professional to do it; they just had the teenage son of one of their employees set it up. The network was left entirely unsecured, and no password was required for access.

In December of 2004, Defendant, a computer programmer, moved into an apartment across the street. He set up his computer and it automatically connected to Plaintiff #1's wireless network. Defendant used Plaintiff #1's wireless network as his internet connection for the next year or so.

Beginning in December of 2004, Plaintiff #1 noticed a massive slowdown in the speed of their wireless network. The performance degradation led to generally spotty internet access, which caused them to lose an account worth $10,000 due to a broken connection in February. Their internet service provider informed them that they were using too much bandwidth, so they purchased a more expensive package.

This solved their problems until October of 2005, when the network slowed down again. This time they brought in a professional network specialist to examine their network. He discovered the slowdown was coming from excess downloading, which could be traced to an outside IP address.

Eventually they found Defendant. They sued him under the federal Computer Fraud and Abuse Act, alleging that he intentionally accessed their network without permission, causing in excess of $5,000 in damages. Defendant argued in reply that they implicitly granted permission to access their network by leaving it unprotected, or alternatively that he was justified in believing that they had granted him permission, and therefore he can't be held liable.

Defendant's problems do not end there. In hunting Defendant down, Plaintiff #1 learned that Defendant had been downloading episodes of a television show off of the internet. The show in question is a day-time talk show. It airs live at 11 AM on the west coast, and never shows re-runs. There are no plans to release it on DVD, nor are there plans to distribute it over the internet, via an iTunes-like service. The show has a viewership of 2-3 million viewers, of whom, according to the Nielsen ratings, about 95% are women aged 35 and up. Defendant is not a woman aged 35 and up.

Defendant learned of this show some years ago from a friend. Since then he has been an avid fan of it. Unfortunately, his work schedule prevents him from watching it live, and his faulty VCR prevents him from recording it in the traditional manner. Therefore, he took to downloading episodes from the internet. He found a website, whose owner he does not know, that uploads copies of each episode of the show after it airs. Each evening, Defendant would go to the website, download the day's episode, and watch it. To save bandwidth and get the episodes up quickly, the recordings are low-quality and all the ads are left in. Defendant sometimes would watch the ads and sometimes would fast-forward through them. He never watched the episodes with other people (it's not the sort of show that young computer programmers usually watch) and he deleted the episodes shortly after he finished watching them, to make more room on his hard drive.

Plaintiff #1, upon learning that Defendant had been downloading the show, informed Plaintiff #2, the production company that makes the show, of Defendant's activities. Plaintiff #2 sued defendant for copyright infringement. Defendant argues in reply that his activities constitute fair use of the copyrighted material.

On motion, the two cases against Defendant were joined into one case. On a motion for summary judgment, the trial judge found for the plaintiffs: There was no dispute as to facts, he ruled, and Defendant was liable to both plaintiffs under a reasonable reading of the law.

Defendant has appealed the summary judgment ruling. All facts are to be construed in the light most favorable to Defendant. The two parties will only be disputing over the legal arguments presented, in the first case that Defendant was granted, or was justified in believing he was granted, access to Plaintiff #1's network, and in the second case that Defendant's viewing of Plaintiff #2's show constituted fair use.

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This page contains a single entry by Zach published on January 30, 2006 7:59 PM.

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