Are You Guilty If Pirates Use Your Internet? Lawyer Says No | Hacker News Reader

Are You Guilty If Pirates Use Your Internet? Lawyer Says No

torrentfreak.com

40 pointsGarbage16 comments

This is supposed to be paired with the alternative viewpoint:

Are You Guilty If Pirates Use Your Internet? Lawyer Says YES

http://torrentfreak.com/are-you-guilty-if-pirates-use-your-i...

"I have heard other lawyers compare leaving your wifi open to leaving a loaded gun lying around."

I like how he tosses that out there as something other lawyers have said, and then says that he would only compare it to leaving your keys in your car. As though that negates his sensationalism.

I also wonder what his opinion is on wireless networks that are "secured" by not broadcasting an SSID, or by using WEP, which even the slowest computer can crack in less time than it takes to torrent a movie. Is that still negligent?

Furthermore, if he's in the business of actually making contributory negligence claims, why can't he cite a successful example, instead of relying on analogous case law from the 1930s, involving physical property instead of intellectual property? (The opposing viewpoint cites the Supreme court on the issues of contributory and vicarious infringement, and the 9th Circuit on a more recent case.)

But this is how arguing about the law so often works. It's not clear what the law should say in a new case, so we make analogies to cases where there's precedent.

The question falls into the general class of problems "If you provide the tools for someone else to break the law, do you have any responsibility when they do?" And that's a huge class of problems, with precedent both ways for various subcases. You are partially responsible if you leave a loaded gun lying on a park bench and somebody shoots someone else with it. You aren't partially responsible if someone breaks your window, picks up a piece of broken glass and goes on a stabbing spree.

It's further complicated, here, by the fact that it's possible to claim "it wasn't me, it was someone else stealing my wifi" when it was, in fact, you.

I know that's how a common law system works, and I'm not saying it's a bad thing. I'm just saying that, for someone who's been involved in hundreds of these suits, it shouldn't be hard to provide a more relevant or more recent analogy, preferably one involving intellectual property or computer crimes, or both. He should also be able to cite the statutes or rulings that provide the legal groundwork for his theory of negligent contributory infringement. (If the SCOTUS has already says that contributory infringement must be willful, what provides the cause of action against an unknowing enabler of infringement?)

His example of negligence in a case where there was a contractual business relationship that was not satisfactorily fulfilled doesn't seem very convincing up against a Supreme Court ruling that contributory infringement must be willful. It sounds more like a way to be on the losing side of a summary judgement.

The fact that the defendant can perjure himself is really never a good reason to invent a new offense.

I wonder what they say about lead pipes. And bricks. And banans (someone could slip on the peel, we shouldn't be providing such powerful weapons!).

The judgement he claims at the start of the essay you point to is probably this: <http://newswire.xbiz.com/view.php?id=136832>. It's worth noting that this is the "pay up or we'll sue you for downloading gay porn" extortion racket, and the $10,401 judgement is a settlement. So his negligence theory probably hasn't been tested in court.

Some countries make sure that you're to blame in any case...

http://tech.blorge.com/Structure:%20/2010/05/12/german-court...

Edit: Note that I'm not really against educating people about encryption. But - how am I supposed to run a private hotspot now? And how the hell would it help if someone now turns on WEP?

New Zealand recently passed a law (which the US government asked for, according to a Wikileaks cable, and the government here rolled over for them) which creates civil penalties for being an 'account holder' with an 'Internet Protocol Address Provider' if the IP address is found to have downloaded copyrighted material.

So when the law comes into force in New Zealand, there will be no need to prove who 'used the Internet' - only who the account holder was for a given IP address, and that the IP address was involved in transferring material owned by the plaintiff (and even then, not really prove - having sent a notice to the defendant via their ISP creates an assumption of liability that has to be disproved by the defendant).

Given the two lawyers, why does the lawyer working for the copyright holders look like somebody you would expect to represent guys named Guido?

It disgusts me that anybody could think someone providing open wifi is negligent. It is not my sworn duty to protect copyright holders' material, after all.

I agree. Can you imagine a bank robber stealing an unlocked car, then using it to go rob a bank and kill people? Then, can you imagine the car owner getting sued by everyone?

I can't.

Perhaps surprisingly, he's spent a lot of his career defending the First Amendment rights of pornographers. This position he's taken seems to stand out as one of his less reasonable opinions, and may be brought on by the fact that he needs this legal theory to be successful in order to overcome the lack of clear and convincing evidence in the cases he is pursuing for one of his biggest clients.

This article is great if you have free legal representation, otherwise good luck spending less in legal fees than the offered settlement amount even if you are totally innocent.

That's why in most jurisdictions the winner of civil litigation proceedings is (generally) entitled to have their costs paid by the other party.

It doesn't really matter what the LAWYER says. It matters what the COURT decides.

Actually, neither matters. The entire point of this tactic is that paying up costs less than mounting a legal defense.

This is just a symptom of the socioeconomic bias in our legal system. Fix that, and such tactics won't be possible. Don't fix it, and you'll be here trying to patch it all day only to have someone come up with another tactic.

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