Wi-Fi access point owners and the “common carrier” defense

Techdirt has a nice posting about the liability of wireless access point owners for illegal or infringing conduct carried out by other people accessing the Internet through their access point. Seems that some individuals may be purposely leaving their access point open (in other words, leaving encryption turned off) so that they could (1) cast doubt that infringing activity conducted using their Internet connection was conducted by them and (2) assert the benefit of “common carrier” defenses available to ISPs and other telecom companies for infringing content transferred over their network. Could it be that we’ll all end up with free wi-fi everywhere we go because people open up their wi-fi routers in the belief that it will help protect them from lawsuits filed by the recording industry? Of course, sharing or reselling Internet connectivity may be a breach of a user’s terms of service from their upstream ISP. But that may or may not be determinative of the potential defense. In any event, an interesting argument.