Admin

Do you have a BitTorrent indemnification clause in your lease?

By
Real Estate Attorney with The Law Offices of Steven C. Vondran, P.C. Attorney at Law

What happens if a tenant is engaged in copyright infringement while living on your premises using your IP address?  A potential legal issue you may not have considered.

Overview

My law firm focuses on copyright infringement matters.  One class of cases we are involved in is defending people accused of using BitTorrent protocal to download and share copyright protected movies.  Typically, a user installs a file-sharing software program, and then can anonymously download and share movies, videos, films, music, software, e-books and other content (all without paying for it).  This can include some of your short-term or long-term rentals.

After infringing downloads are detected, a lawsuit will be filed (for example, by Strike Three Holdings, LLC) in federal court where copyright cases are heard, and a subpoena is issued to the ISP that provides the internet access.  The subpoena requests the name and address of the SUBSCRIBER on the account.  If you are a landlord who offers free internet or wifi access, this could be you.  

Naturally, you are not the downloader, (your tenants are), but there is a legal argument to be made that as the subscriber on the internet account, you can be held personally liable for what happens on your account.

The landlord may then seek out legal counsel to decide what they need to do.  Likely, you will not want to be held liable, and may instead want to implicate your tenant(s).  But, can this raise privacy concerns with a landlord giving out the name of the alleged downloader.

A landlord may then need to have a heart-to-heart talk with the tenants, and see if they have been engaged in downloading copyrighted materials and sharing them through the internet.  Will you tenant fess up?  Will they agree to be solely responsible for their infringement?  What if their lease just ended and now they cannot be found?

Potential Solution

You might need to consider adding a clause addressing this specific point in your lease.  While many contracts may have a (rather vague) provision requiring the tenant to "honor all laws" will this be sufficient if the Plaintiff comes looking for settlement money which can be anywhere from $5,000 to $30,000.  

A sample clause could sate something to the effect of:

While a tenant, you agree not to engage in any illegal conduct via use of the internet including but not limited to using file-sharing protocals to share movies, music, films, e-books and any other copyrighted content.  If tenant violates this provision, they shall be required to fully indemnify landlord for any and all costs of defense, attorney fees, damages, etc. and to hold landlord harmless and defend landlord in any lawsuit.   You also hereby expressly agree to waive any privacy or other legal rights you may have, as landlord may be obligated, and shall have the right to disclose your name and contact information for legal purposes if any action, proceeding, or demand is initiated.

This is just one idea and this is not legal advice just a sample to consider.  Check with your local real estate counsel for rules and potential clauses that may be enforceable in your area.

Steve Vondran, Esq. - California IP Legal Counsel [VondranLegal.com]

 

 

 

 

 

 

 

 

 

 

 

 

John Pusa
Glendale, CA

Hello Steve Vondran very good helpful report for to have a bittorrent indemnification clause in lease.

Apr 14, 2023 03:46 PM
Michael Jacobs
Pasadena, CA
Pasadena And Southern California 818.516.4393

Hello Steve - interesting topic.  And one I can't "imagine" coming up in conversation long ago.  

Apr 15, 2023 04:10 AM
Bill Salvatore - East Valley
Arizona Elite Properties - Chandler, AZ
Realtor - 602-999-0952 / em: golfArizona@cox.net

Hi,

Welcome to the Rain. Enjoyed your blog page, and I added you as a

friend. I would love the follow back. Bill

Apr 15, 2023 07:52 AM