Once More, With Feeling: Having Open WiFi Does Not Make You 'Negligent' Under The Law

from the hopefully-the-court-agrees dept

Mon, Jun 18th 2012 9:15am — Mike Masnick

Over a year ago, we wrote about an attempt by a porn company, Liberty Media, to sue a bunch of people it accused of infringing on its copyright. The case had many similarities to copyright trolling lawsuits, but there was one claim in particular that we found quite troubling: the idea that not securing your WiFi was a form of negligence. The lawyer representing Liberty, Marc Randazza, is someone I know and like, and who I normally find on the good side of lots of cases (and, in fact, I've sent people his way when they've been looking for good lawyers). When news came out that someone had "settled" with the company and the vast majority of the amount the person agreed to pay was for that "negligence," we found it quite problematic and told Randazza we were planning to write about it. In response, he sent a long email to both me and Torrentfreak -- which they published as a guest opinion -- defending why an open WiFi qualifies as negligence. I wrote back a response as to why I thought he was completely wrong on this one.

And, now, a court may be deciding the same thing. The EFF has filed an amicus brief in what I believe is a related case arguing that this theory of negligence is ridiculous (Update: Randazza informs me that he's not counsel on this particular case and says that the negligence claim here is quite different and, contrary to the EFF's claim has nothing to do with open WiFi. Instead, the negligence theory put forth focused more on the fact that the guy being sued was aware of infringement on his WiFi and still allowed the user to use it -- more on that below). Here's just a snippet from the lawsuit:

LMH’s theory of liability cannot withstand even passing scrutiny. No matter how artfully pled, LMH’s claim sounds in, and is preempted by, copyright law. And as decades of copyright jurisprudence and legislation make clear, that body of law does not recognize a cause of action based on mere negligence. Accordingly, no court has ever found, or could ever find, that anyone has violated copyright law simply because another user of his or her Internet connection did so.

And that is a good thing. Every day cafes, airports, libraries, laundromats, schools and individuals operate “open” Wi-Fi routers, sharing their connection with neighbors and passers-by at no charge. Sometimes people use those connections for bad acts. Most of the time they don’t, and the world gets a valuable public service of simple, ubiquitous Internet access.

Creating a duty under tort law to prevent others from infringing copyright would drastically inhibit this activity, to the detriment of the general public and clear federal copyright and telecommunications policies promoting convenient, universal access to the Internet. Thus, manufacturing a new copyright cause of action based on negligence – which, make no mistake, is precisely what LMH asks the Court to do – would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

It would be nice to have a clear statement from the court on this matter, clarifying that merely having open WiFi -- as thousands upon thousands of individuals and businesses do -- is not a sign of "negligence" that automatically makes you liable for any infringement done on those networks.

Update: As I put in the update above, there is some argument over whether or not the case is even about open WiFi, but I think that the EFF's point still stands and fits the facts of the case. Even if we're talking about a situation in which a WiFi network owner knew someone was infringing on their WiFi, it is still a huge stretch to argue negligence on their behalf for allowing the usage of the network to continue, and that negligence claim could carry over to the question of open WiFi. As the EFF notes in its filing, using negligence as a theory related to copyright creates an entirely new theory of copyright liability not seen in the statute and with a significantly lower bar than existing theories of secondary liability in copyright. Thus, expanding negligence to cover liability in a copyright claim could have a massive impact beyond just the individuals in this case.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: liability, marc randazza, negligence, wifi
Companies: eff, liberty media

99 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

jupiterkansas (profile), 18 Jun 2012 @ 9:27am

It's sad that we need a court ruling for something so obvious.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 9:28am

"manufacturing a new copyright cause of action based on negligence "

While it might seem to some that "more is always better" when it comes to copyright, I'm seriously doubting RIAA/MPAA would actually want this. After all, who are the most willfully ignorant serial copyright infringers on this planet today? Yup, its the "taker downers", or the "takedowners" or the "decidors"... not sure which is most accurate in the vernacular.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 9:33am

I think it would be nice to get some guidance from a court on the issue, but one problem is that "negligence" is determined on sort of a case-by-case basis. One with particular knowledge/skill in an area might be acting negligently, whereas another with no knowledge/skill in the are might not.

That might undermines how any court's opinion on the matter would apply to others' cases.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 9:33am

I suspect that this settlement may well be a face-saving action where the defendant is able to maintain that it was someone else rather than have the details of the infringement scrutinized on the record. There's also the difference between a private and public open wireless connection. I've never looked at the TOS for my own private wireless, are you typically required to password protect?
[ link to this | view in thread ]
BentFranklin (profile), 18 Jun 2012 @ 9:34am

By their reasoning it would also be negligent not to have a padlock on your mailbox.
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 9:38am

Oh THAT case....
This is a troublesome little case that was kicked out of CA and then refiled in NY. LMH cases have problems like this sometimes.
Where did I put those case numbers.... here we go...

http://ia700607.us.archive.org/5/items/gov.uscourts.casd.347875/gov.uscourts.casd.347875.do cket.html

http://ia601201.us.archive.org/21/items/gov.uscourts.nysd.393886/gov.uscourts.nysd.3938 86.docket.html

It was kicked out of CA for the court lacking jurisdiction over the defendants. But not before attempting to get default judgements entered, which is disturbing as I've seen cases where the proof of service is flawed and they still move for default having never informed defendant of the suit, or informed the court the defendant is well outside the jurisdiction.

And all of this is based on the silly tugboat law that keeps being twisted to support this crazy idea.

The main reason to sue both of them is for all of their superduper German provided IP tracking they can't prove which one if indeed either of them had done it.

The court in Hawaii tossed this action out of the cases filed there, hopefully they can see the light in NY.

The negligence claim is the backup to not being able to extort a payment based on the allegation you downloaded it, if you say you didn't they simply point out you owe them all this money for letting it happen.

These cases for LMH are now finding trouble with not representing the material with the name the copyright is actually given.

It seems times are not going well for copyright trolls, one is even using a robodialer to deliver threat calls now, if only they'd read the manual... or the laws about calling defendants represented by council... oops.

Lets hope the EFF can educate the courts about this silly claim and finally sink it once and for all.

I expect SJD will be along shortly to fill in any gaps I missed.
[ link to this | view in thread ]
Sneeje (profile), 18 Jun 2012 @ 9:42am

Re:
I want to agree with you, but so far there has been absolutely no evidence that either the legislative or judicial branches have any appetite for acknowledging abuse of the copyright system by any copyright or possible copyright holders. They seem to have an acceptance that collateral damage is just something to accept.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 9:43am

Re:
... negligent not to have a padlock on your mailbox.

There are still places in America where people don't pull their car keys from the ignition when they run into the post office.

... is a Democrat in the diaspora. In Oklahoma, a state wedged between Texas and Kansas, that's enough to be considered an outsider. The town of Washington is a place where people say business transactions are still sealed with a handshake, and a man's word is worth more than a contract. In this Washington, with its 520 residents, where everyone knows everyone else, people don't lock their doors and they leave their car keys in the ignition when they go into the post office. It's a place that attracts people who want to get away from the cities, and from their licentiousness and liberal lack of morals.

�� Spiegel Online, Jun 14, 2012
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 9:43am

Re:
Does are threatened with upto $150,000, the $10,000 IIRC negligence threat is a secondary part of the mass Doe suits filed by LMH (Randazza and various local lawyers they use). It gives them a stronger position to get money from the Does before moving into court.

It is being used in this named case in an attempt to get a legal ruling he can show off to scare more people into settling. Much like the massive $250,000 "win" that was never going to be the full amount, or one other settlement where it was like 1 or 4 bucks for the contributory infringment claim but $10,000 for the negligence claim.
[ link to this | view in thread ]
GMacGuffin (profile), 18 Jun 2012 @ 9:45am

Negligence - Personal Injury or Property Damage
In addition to copyright preemption, the case seems to forget/ignore a simple legal precept that it seems all lawyers forget the day they graduate from law school:

Negligence (duty, breach, causation, damages), generally only applies to "personal injury" and "property damage." Even the seminal case referred to by Randazza in his TorrentFreak letter was about a ship's cargo being lost due to lack of radio communication (property damage).

Again, copyright infringement is not stealing; no property was damaged or lost. Copyright preemption aside, there would otherwise be no viable negligence claim.
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 9:48am

Re: Negligence - Personal Injury or Property Damage
Unless you just trying to slip some words into a lawsuit and praying it isn't struck down.
It is nothing more than a backup position from which to try to make sure to get a settlement payment from a Doe.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 9:52am

Re: TOS for my own private wireless
What? What does the TOS for your ISP have to do with negligently (or otherwise) leaving an internet connection open for use my others?

Sure I may be in violation of the ISP TOS (and they might terminate my service) But how exactly does that translate to I am responsible for what someone else downloads over the connection? Whether is a public of 'private' connection makes no difference!
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 10:01am

Re:
Passwords can be hacked.

Many wifi routers are setup by 3rd parties working for ISPs who sometimes forget to protect them to save their customers "hassles".

It hardly is a face saving action as Randazza has already publicly stated if you say you didn't do it, he was willing to come to your neighborhood and go door to door asking them if they downloaded the gay porn using your connection.

Because connecting peoples names with gay porn viewing couldn't be undo pressure on people to settle and make this go away...
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 10:03am

Why don't "we" start a movement, where all free WiFi distributors will move to start using a standard "letmein" password.
[ link to this | view in thread ]
Johann Wilkerson, 18 Jun 2012 @ 10:11am

unsecured != negligent
I should connect my telephone via clip-leads to the phone NIU at someone's home or business and use their telephone service to make illegal calls. That way, they will be criminally liable for the act for failing to "secure" the access. Technically, the phone company would be complicit, as well, since they provided the NIU w/ no means to lock it. Right?
That makes sense, doesn't it?
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 10:14am

Aaron Silverstein : tugboat of Massachussetts
Less than a month ago, Randazza's puppet who continues pushing this bizarre negligence theory in Massachusetts, copyright troll attorney Aaron Silverstein blocked me from following him on twitter after I replied to one of his tweets:

He tweeted:

Aaron Silverstein‏ @asilverstein Jun 4
Disturbing: #flame spread thru valid #microsoft security certificates. microsoft throws kill switch. http://tinyurl.com/6ncyzrn

My reply was:

FightcopyrightTrolls @fightcopytrolls
.@asilverstein irrelevant: it's your system, and you are liable for any damage resulted from infection incl. espionage and high treason.

I admit that I hate certain trolls (not many), but most of them cause a mixed feeling of pity and disgust in me.
[ link to this | view in thread ]
TtfnJohn (profile), 18 Jun 2012 @ 10:15am

Most router manufacturers recommend password protecting the network and the router which is a long, long way from saying that it's required.

Many, if not all, residential combined datasets and wireless routers come wide open out of the box that the customer picks up even should the TOS, in very tiny type, requires the user to "secure" it without any instructions on how to do that. Negligence would be difficult to establish under circumstances like that and just who who would be negligent would be open to some question. I have no idea how cable companies deal with that, or if they do, as I didn't work for a cableco before I retired.
[ link to this | view in thread ]
Marc John Randazza (profile), 18 Jun 2012 @ 10:19am

The EFF is lying
Mike,

Can I make a little request? You state in your post that you know me and like me (thanks, its mutual). You know my email address. You know my phone number. You have the right to use either one.

If you're going to mention me in a piece, you think you could take 5 minutes to ask for comment? It might actually help you make your post accurate.

1) If you look at the case, you'll find that I am NOT counsel in the Liberty v. Tabora case in New York. Marco Santori is representing Liberty in that case.

2) The EFF is lying, not misrepresenting, not fibbing, lying, about the negligence theory in the case. It has nothing, whatsoever to do with open wifi. Nothing. Nada. Not even mentioned. The only place it is mentioned is in the EFF's lying brief in which they claim that is the issue.

The real story is that Tabora knew that Whetstone was using his internet connection for piracy. The negligence theory is that if T knows that W is committing a crime with his account, and still lets him use is, then T is negligent.

You see? Nothing to do with open WiFi whatsoever.

So the court won't be giving a "clear statement" on the open Wifi theory. Not at all. Because the EFF is lying to try and fool bloggers and journalists who are too lazy to actually look at the case.

It might be good for your credibility to make your report something more than a parroting of the lies.

Now that said, you still might philosophically disagree with the theory -- and that's fair enough. But for fucks sake, at least build it on a foundation of truth and accuracy.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 10:29am

Open wifi should not ALWAYS be ok.

I agree in the majority of situations, but if a business could be held liable not protecting its data under current laws (say PCI compliance, etc) that should include open wireless communication. Basically what I'm saying is I don't want the ruling to be "no one has to protect their wireless networks" so I might be over-generalizing.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 18 Jun 2012 @ 10:30am

Re:
Obligatory XKCD comic about creating new "standards":
http://xkcd.com/927/
[ link to this | view in thread ]
Mike Masnick (profile), 18 Jun 2012 @ 10:34am

Re: The EFF is lying
Heh. I've updated the post to clarify that Randazza is not specifically on this case (though I never said that in the original post either -- I just talked about the earlier cases as background, which do appear *related* to this case). However, Marc's correct that it would have been good for me to reach out first.

That said, as I explain in my longer update, I still think the EFF's argument is on point and disagree with Marc that it's "lying." I think that the argument still applies to whether or not you can make a negligence argument concerning copyright and a network operator. The facts may be specific to a certain situation in this case, but they could then be expanded to cover other arguments related to open WiFi and negligence over copyright. And that's a concern.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 10:38am

Of course open WiFi makes you negligent! By having a connection to TRILLIONS of MBs of files on the Internet for FREE just being in the area you're inviting people to come and steal all that data!

It's just like when banks horde lots of money in their vaults and leave the front door to the bank wide open! Then crooks always come along and rob the bank! The bank should have known better then to leave all that money lying around while welcoming customers to just walk right in the front door unannounced! That's negligence, we should be prosecuting the banks for those robberies, not the robbers!

(Interesting how the logic on negligence for open WiFi completely falls apart when you compare it to similar offline situations)
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 10:39am

Re: The EFF is lying
I recently started giving various copyright trolls nicknames. So far:

Paul "Anal" Lesko
Jeffrey "Blumpkin" Weaver
Brett "Pinocchio" Gibbs...

How about Marc "Tugboat" Randazza?

Although many know what I'm referring to, Urbandictionary.com has some unexpected interpretations of this word.
[ link to this | view in thread ]
Marc John Randazza (profile), 18 Jun 2012 @ 10:46am

Re: Re: The EFF is lying
No, they are lying. There's no two ways about it. The case has nothing to do with open wifi. Nothing at all. A lie is a lie is a lie.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 10:54am

Re: Re: The EFF is lying
"The lawyer representing Liberty, Marc Randazza, is someone I know and like, and who I normally find on the good side of lots of cases (and, in fact, I've sent people his way when they've been looking for good lawyers)."

I THINK I JUST THREW UP IN MY MOUTH A LITTLE.
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 10:55am

Reading Randazza's reply I am curious to know how they obtained the information that it was the roommate and how the original target of their John Doe fishing trip relayed that information.
Did he fall into the common trap Does do when faced with one of these cases, I didn't do anything I can just explain myself and it will go away? Did he then get lead down the primrose path answering if he had a roommate who might share the connection, and could he be the one who did it?

Tugboat without a radio, still not meeting the requirement of someone having to actively police copyrights they don't own.
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 10:57am

Oh and lets all give the EFF a big hand for finally noticing there are copyright trolls shaking people down over gay porn.

Hundreds of cases filed, I do believe this is the first one involving gay porn where they did anything.
[ link to this | view in thread ]
E. Zachary Knight (profile), 18 Jun 2012 @ 10:59am

Re:
??? You comparison makes absolutely no sense.

Here is a better one for you.

You have a phone that you let people use when they ask to use it. You do not monitor the calls as you respect people's privacy even though they are using your phone. One day someone uses your phone to do something illegal (who cares what it is, it is beside the point.) Should we prosecute the person who let people use their phone because they were "negligent" in preventing criminal activity? Absolutely not.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 10:59am

Re:
In the complaint the defendant admits to telling the troll that his roommate was doing it.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 11:02am

Re: Re:
and to add to your point, copyright infringement in the claim they are making here IS NOT EVEN CRIMINAL! It's a civil matter
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 11:02am

Re: The EFF is lying
1) John Steele (I know, you respect him a lot) also claims that he is retired and has nothing to do with shakedown cases filed by Prenda. NY goons (who by the way are infamous for suing a harmless homeless man)? So what? It is still YOUR case, as TAC nicely proved above, and YOU are a liar in this respect.

2) As a matter of fact, you may be right, and wi-fi negligence has a little to do with this particular case. Yet your infame comes before you, so regardless of this particular case, EFF's arguments are solid as they address a bigger issue. Your "tugboat theory" is almost a meme, and it
would be funny if not for the fact that by discouraging small businesses from having open wi-fi (you would never attack Starbucks, would you?) you basically assault our quality of life. All in the sake of failing profits of an obscene business that cannot adapt to the realities of today. You are an enemy of the society, Marc Randazza.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 11:08am

It's all well and good to claim it's negligence but you know what I don't see mentioned in the comments nor the article? Have you ever actually had to go in and configure a router? Unless you are a computer whiz, most of you aren't going to be able to do it.

You need the instructions if you never done it before. How many you know think it is manly, not to read the instructions when it comes to Joe SixPack? How many even save the instructions? When you read those instructions, it's like learning the computer again; everything has it's own nomenclature and it's greek to anyone whose never fooled with setting up a router.

Then there is the setting of security which reads like it's been encrypted itself. Often with multiple choices and no or very little explanation why you should choose this over that, other than maybe the steps look harder. After all that, if you are successful in your first setup, low and behold you find out a few days later it was all for naught as someone knows how to break in.

Negligence indeed....Nice way to word it when you're looking for income.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 11:09am

Re: The EFF is lying
Actually it will be clear. The situation you outline is much broader than open wifi. It will cover third-party use of your internet connect regardless of how someone was able to connect (wifi, hard wired, or otherwise).

And just FYI, nowhere in the complaint are they alleging any criminal copyright infringement. This is a civil complain. BIG DIFFERENCE. I would ask for you sir to stop lying.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

average_joe (profile), 18 Jun 2012 @ 11:14am

Re: Re: Re: The EFF is lying
Kudos to you for calling out Mike on his shoddy "reporting." He's in such a rush a publish the next hit piece, that I think he "forgets" about things like reaching out to folks and doing actual journalism.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 11:15am

Re: Re: TOS for my own private wireless
A TOS violation could be an indicator of negligence. Another arrow in the quiver.

There's all sorts of negligence law findings about stupid shit. Say you have a property with abandoned mine shafts and don't seal the entrance. A trespasser enters the mine and is injured or killed. Guess what, you're negligent for maintaining an attractive nuisance. The mere fact that the person was trespassing doesn't absolve you.

In this case another type of trespasser has committed a crime. Is the owner liable? I don't know, but I do know that is not as cut and dried as the headline suggests.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 11:16am

Re:
I also forgot to mention, the instructions on what to do vary widely between makers. Even same maker with different models vary on how to do something like configuring.

I used to instruct folk over the net on how to port forward. Lots of places on the net will teach you to port forward, only they never have exactly your model for instructions up. Those that are up and not similar to yours.

Sometimes I ran into someone who knew how to get around in router configuration setup pages so that was a shorty of 4 minutes. More often; no clue. Those could be trying. Get it wrong on configuration...no more internet till you get it right.

This whole thing of negligence doesn't take into account most are not computer wizards and the technical abilities vary widely between individuals.

Comprehension to computereze varies widely as well. I've seen people throw up their hands when faced with simple tasks simply because they have no threshold for it and the confusion that comes with it.
[ link to this | view in thread ]
Raul (profile), 18 Jun 2012 @ 11:17am

Re: The EFF is lying
So T has a duty of care to LMH? Why?
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 11:23am

Re: Re: Re: Re: The EFF is lying
At least Marc had the decency to avoid mud-slinging, but then again Marc actually contributed to the discussion, instead of just throwing insults.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

average_joe (profile), 18 Jun 2012 @ 12:06pm

Re: Re: Re: Re: Re: The EFF is lying
Hey, Mike's the one who wants the respect and trust of a real journalist, but without the hassle of doing actual journalism. His shortcomings are his own.
[ link to this | view in thread ]
Mike Masnick (profile), 18 Jun 2012 @ 12:10pm

Re: Re: Re: Re: Re: Re: The EFF is lying
Hey, Mike's the one who wants the respect and trust of a real journalist

Since when?

Never claimed that my blogging was journalism.
[ link to this | view in thread ]
BentFranklin (profile), 18 Jun 2012 @ 12:12pm

Re: The EFF is lying
This whole tugboat thing is just bizarre. How is the tugboat case germane other than a law school definition of negligence? Surely, a judge would be more impressed with a negligence example that bore more similarity to T & W.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 12:13pm

Re: Re: Re: Re: Re: Re: The EFF is lying
This is an opinion blog, man...you should probably check your facts before opening your mouth.
[ link to this | view in thread ]
Marc John Randazza (profile), 18 Jun 2012 @ 12:20pm

Re: Re: The EFF is lying
The TJ Hooper case stands for the proposition that it is the province of the court to recognize duties in negligence cases -- even new ones that have not existed before.

You focus on the legal rule, not the boat. If you focus on the boat, you'll be confused. If you focus on the legal rule, you'll understand.
[ link to this | view in thread ]
The Groove Tiger (profile), 18 Jun 2012 @ 12:24pm

Re: Re: Re: Re: The EFF is lying
And you claim your comments are "journalism", average_joe? You should look up journalism in the dictionary before commenting and then claiming to be a "reporter"!
[ link to this | view in thread ]
Jeffrey Nonken (profile), 18 Jun 2012 @ 12:31pm

Re:
We could get Arlo Guthrie to sing it for us in four-part harmony!
[ link to this | view in thread ]
average_joe (profile), 18 Jun 2012 @ 12:44pm

Re: Re: Re: Re: Re: Re: Re: The EFF is lying
Since when?

Never claimed that my blogging was journalism.

Oh, so you don't want people to have respect and trust for your blogging? Give me a break. You explicitly don't claim it's journalism, but clearly you want the same respect and trust that journalists get. The difference is that you don't want to earn it. Don't worry, Mike. I get it. You can't have it both ways, but both ways is how you want it. Makes sense to me.
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 12:55pm

Re: Re: Re: The EFF is lying
Yep, BentFranklin, please focus on the legal rule. Forget about ethics, lies, extortion-like practices, error-ridden super-secret German software, lies, disproportional and insane statutory damages, catch-22 when an innocent person settles because fighting is more expensive, lies, outing of closeted gays, inequality of arms...

Focus on the legal rule. Not on the boat.
[ link to this | view in thread ]
Lowestofthekeys (profile), 18 Jun 2012 @ 1:09pm

Re: Re: Re: Re: Re: Re: Re: Re: The EFF is lying
You know, assuming people's intentions doesn't hide your obviously biased agenda.
[ link to this | view in thread ]
TOOT TOOT, 18 Jun 2012 @ 1:16pm

Re: Re: Re: The EFF is lying
Your comment missed the tugboat. That case is about standard of care and whether or not the tugboat company was in breach of it's duty.

What the case fails to prove is whether there was a duty (a legally recognized relationship between the parties). How does Joe Home Internet User have any legal duty to Mr. Porn Purveyor?

Can you pick some case law that doesn't involve a dispute over whether using radios is considered standard of care?
[ link to this | view in thread ]
Rikuo (profile), 18 Jun 2012 @ 2:08pm

Re: Re: Re: TOS for my own private wireless
TOS = Terms of Service, as in terms you agreed to when you signed up with your ISP. If you or the ISP fail to live up the terms, either one may either terminate the contract or sue the other in CIVIL court.
TOS's have no place in criminal court, especially in a case involving negligence.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 2:11pm

Re: Re: Re: The EFF is lying
Look at me... I'm on a boat... It's a tugboat...

Now look up, that's a cloud, look down, that's the ocean

I'm on a tugboat, in the ocean under a cloud...

Look over there, that's the shore, the other way, another boat.

look back to the cloud... nice soft fluffy cloud, so cute

##**&&%$&#*#&%&#%&* CRASH... BOOM ####**&*&&%*$&#*#

Okay, who wasn't watching where they were driving the tugboat again????

You're right, the boat is a lie, all your tug's are belong to us.
[ link to this | view in thread ]
Rikuo (profile), 18 Jun 2012 @ 2:15pm

Re: Re: Re: Re: Re: Re: Re: Re: The EFF is lying
But he has earned it. Mike may or may not actually want to call himself a journalist, but in my own eyes at least, he is one, and a damn fine one, writing several well written articles a day, five days a week for, how many years now?

What about you? What have you done? Are you a journalist? If you want to constantly call someone out for shoddy journalism, it helps your position if you yourself are one and can say "This here is how its done".
If all you can do is call Mike names without EVER citing evidence...then kindly FUCK OFF. If there is evidence, then I'd love to see it. Go on, show us. If Mike really is as evil as you claim, give us the proof and we'll publicly burn him at the stake.
[ link to this | view in thread ]
DieTrollDie (profile), 18 Jun 2012 @ 2:28pm

Re: Re: Re: Re: The EFF is lying
So true - No legal duty (to Plaintiff or society) to secure the Internet connection or monitor for abuse. The only way the Tugboat case would make sense in this situation is that the ISP subscriber had a subscription to Plaintiff's Web site and agreed in the access/user agreement to ensure it wasn't shared out to non-paying personnel.

DTD :)
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 2:30pm

Re: Re: Re: Re: The EFF is lying
http://www.youtube.com/watch?v=avaSdC0QOUM

Couldn't help it.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 3:40pm

If you leave your WiFi open, you ARE negligent. What the hell is everyone here smoking to think it isn't? Just because you don't understand the technology doesn't grant you immunity to the consequences.

Imagine your front lawn completely blanketed in firearms. Someone strolls past, who happens to be in the market for free firearms, decides to grab one and rob someone. You bet your delicious ass you are liable for the crime committed; at least partially. Just like your firearms, secure your WiFi.

The similarity is clear - you are blatantly offering (nay, advertising!) a tool that can be misused and if someone takes you up on that offer, whether you know it or not, you can and should be held liable. Now if that person had to circumvent measures used to secure those tools, I imagine the court would overlook your involvement.
[ link to this | view in thread ]
Raul (profile), 18 Jun 2012 @ 4:17pm

Re: Re: Re: Re: Re: The EFF is lying
DTD just hit the nail squarely on the head.
[ link to this | view in thread ]
Raul (profile), 18 Jun 2012 @ 4:36pm

Imagine your front yard has a mailbox and your neighbor strolls along and uses your mailbox to mail anthrax to Congress, under your analysis, you are liable? Better anology is the one every first year law student is presented:
You are walking down the street and see a baby face down in a pool water drowning. If you walk on by you are not negligent just an asshole.However, if you stop and try to save the baby but are unsuccessful you can be sued for negligence. In the first situation there is no legal duty of reasonable care in the second situation you have created such a duty.
In this mean spirited and BS lawsuit there is siimply no duty of care regardless as to how the troll tries to spin it.
[ link to this | view in thread ]
Digitari, 18 Jun 2012 @ 4:42pm

Re:
as Negligent as a false DMCA take down perhaps?
[ link to this | view in thread ]
WTF is the Anonymous Coward smoking???, 18 Jun 2012 @ 4:45pm

Re:
IDIOCY OF THE HIGHEST ORDER!! Your analogy and argument on open WiFi negligence makes absolutely no sense. A gun on the lawn leads your lack of grey matter somehow to an open wifi connection? Shit for brains is all you have.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 5:09pm

Re:
You seem to ignore the difference between criminal and civil. There are VERY different standards and definitions. Armed robbery is a crime, copyright infringement in a civil issue.

In short, Criminal negligence occurs when a person, knowingly, undertakes risky behavior that causes him to breach a duty to exercise a reasonable amount of care (leaving guns on the lawn is kinda risky).

To prove civil negligence, a plaintiff must prove four elements: (1) that the defendant had a legal duty to conform to a specific standard of care; (2) that the defendant breached his duty of care; (3) that defendant's breach was the direct and proximate cause of the plaintiff's injury; and (4) that the plaintiff suffered damages. In a civil action, the plaintiff must prove each and every element of negligence by a preponderance of the evidence.

These guys can't even get past step 1 for civil negligence!
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 5:33pm

Re: Re: Re: Re: Re: Re: The EFF is lying
I think it's hilarious that you think you have any standing to talk about respect.
[ link to this | view in thread ]
Marc John Randazza (profile), 18 Jun 2012 @ 6:29pm

Re:
I think comparing this to a lawn covered in firearms is a bit much.

But, a better analogy is this: You lend your car to your roommate. Your friend goes out and uses the car to loot someone's house. Are you liable? Probably not. You had no clue he was going to do that.

But then, you confront him. You tell him that you know he used your car to transport all kinds of stolen goods. You tell him "that's not cool, man, I could get in trouble."

The next day, he asks you for the keys and you say "yeah, sure, go ahead." And he does it again.

Different story?

How about the third, fourth, or fifth time?

At some point, you cross the line, right? The unresolved question is "when?"
[ link to this | view in thread ]
JMT (profile), 18 Jun 2012 @ 6:45pm

Re: Re: Re: Re: Re: Re: Re: Re: The EFF is lying
"Oh, so you don't want people to have respect and trust for your blogging?"

Wow, did it take only 38 minutes to forget what you wrote? First you said Mike wants the respect and trust of a "real journalist" but now it's respect and trust for his "blogging". Is that a slip the tongue or are you claiming these are the same thing?

You and a few other regular critics are the only one ever making the journalism claim. Most of Techdirt readers are quite comfortable with the understanding that this is an opinion blog.
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 7:05pm

Re: Re:
Save your drama for never-to-happen jury. "Stolen goods!" Drugs!" Why everyone likes to make dramatic analogies from the criminal domain? Sharing obscene material and stealing goods don't dwell close to each other, miles and miles apart. If your want your analogy to fly, at least replace "transporting all kinds of stolen goods" with double parking.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 7:08pm

Re: Re:
What you're describing sounds like contributory infringement to me, not negligence. There's no such thing as negligent infringement, right?
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 7:21pm

Re: Re: Re:
If trolls shake down their victims claiming "negligent infringement," can we counter-sue them for "negligent extortion"?
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 7:32pm

Re: Re:
Which case and which document(s) contain that information please.
I seriously have read hundreds of documents in these cases and I'm a bit burned out on them.
Like a certain MA LMH case where the proof of service claims it was delivered at an address in the middle of a lake. Funny how attempts at service in these cases all seem to have glaring flaws, followed by quick motions for default judgements when they can't prove actual service.

That case also contained a defendant allegedly admitting doing it in the complaint, but there is nothing to support that factually.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 7:36pm

Re: Re:
Last I checked, this case is about one video, not a pattern of conduct. Once again you have your head stuck in the criminal world, which is not anywhere near where this case is. The complaint does not mention movie after movie after movie being shared.

Let's take your example of stolen goods (*chuckle*). Yes, you may considered criminally liable, but in civil court? Not a chance. The laws just don't support that.

You seem to keep avoiding the key factors in civil liability.
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 7:47pm

Re: Re:
Ok I found it... if your playing the home game it is the complaint for the NY filed version of the case.

And your telling me the average human says "I was negligent" in regular speech patterns?
That leads me to believe it was a directed conversation getting the accused to say a series of responses that was then used to establish guilt.

This is why the main thing I, SJD, DTD, and the handful of good anti-troll lawyers have the number 1 rule of DON'T TALK TO THE TROLLS. They just want to get paid and do not care that you were out of the country, don't own a computer, are blind, are 80 with no understanding of bittorrent. They want to get paid and they will get you to say things where you manage to admit some sort of guilt for your role in this witch hunt and then demand payment from you as well as the party who actually infringed. That makes you a 2 for 1.

I enjoy the stills of the copyright notice from the video showing the name of the film that is NOT the name the copyright is registered in. Crossing t's dotting i's one would expect you might actually use the actual name of the copyrighted material in question rather than a shortened version.
[ link to this | view in thread ]
That Anonymous Coward (profile), 18 Jun 2012 @ 7:49pm

Re: Re: Re: Re: Re: Re: The EFF is lying
No, Crystal Cox is not a journalist.

:D couldn't resist.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 7:56pm

Re:
Man, no matter how many times it's remarked upon, you ACs seriously DO NOT seem to be able to make decent analogies. You just compared having open WiFi to leaving a plethora of firearms on a front yard. The word "wow" comes to mind at having read your comment. As in "wow, someone cannot be this stupid".
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 8:10pm

A proper analogy
Imagine you have a dead pterodactyl on your front lawn. No passerby can resist exclaiming �WOW!� Now imagine a tugboat sitting on top of your roof. It�s not even �wow,� one who spots it opens his mouth and remains silent for no less than five minutes, which inevitably causes a policeman to be born in the suburb. Are you responsible for the drowning of Rodney King then? Sure you are!
[ link to this | view in thread ]
Raul (profile), 18 Jun 2012 @ 8:11pm

Re: Re:
Going back to the drowning baby analogy. Scenario 1:Roomie is using my ISP to loot porn and I do nothing. Scenario 2: Roomie is looting porn and I try to stop him but fail because I am not a good preventer. Which scenario exposes me to a more viable negligence claim? Troll, your BS claim just does not hold water, much less float a tugboat.
[ link to this | view in thread ]
Raul (profile), 18 Jun 2012 @ 8:19pm

Re: A proper analogy
Hilarious! Still wiping tears away.
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 8:20pm

Re: Re: Re: Re:
Oh, I invented even better cause of action to counter-sue trolls!

Negligent douchebaggery!
[ link to this | view in thread ]
Blast from the past, 18 Jun 2012 @ 8:40pm

http://torrentfreak.com/open-wifi-and-pirates-why-copyright-negligence-won%E2%80%99t-fly-110827/
[ link to this | view in thread ]
Raul (profile), 18 Jun 2012 @ 8:57pm

Re: Re: Re: Re: Re:
Too funny! Good night all.
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 18 Jun 2012 @ 9:30pm

Re:
I think that Mike has nothing to do with Marc being pissed off. It's all EFF and EFF only. Marc believed for some reason (enormous hubris?) that EFF would always be lenient and close their eyes to his shenanigans. Nonetheless, with Randazza's own words, at some point you cross the line.

Given a homage to the analogy-loving crowd, it's like a computer game: Randazza collected many armor and health points (i.e. reputation) over years, and started believing that he operates in the GOD MODE. But in reality those points are wearing thin, and his recent admirers started openly questioning his ethics. Those less brave, instead of lending support, are silent, and I feel this eerie silence very well. I may be dumb and anyone can ridicule my broken Legalese, but my intuition rarely betrays me (INFP).
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2012 @ 9:33pm

Re: Re:
Not me, he is a Troll.
[ link to this | view in thread ]
Anonymous Coward, 19 Jun 2012 @ 4:34am

Re: Re: Re:
In the SDNY T's attorney has noticed this "small" problem with the complaint http://ia601201.us.archive.org/21/items/gov.uscourts.nysd.393886/gov.uscourts.nysd.393886.17.0.pdf T's attorney has also observed that Randazza is not the most courteous of God's creatures http://ia601201.us.archive.org/21/items/gov.uscourts.nysd.393886/gov.uscourts.nysd.393886.11.0.pdf
[ link to this | view in thread ]
average_joe (profile), 19 Jun 2012 @ 5:32am

Re: Re: Re: Re:
Looks like more of the same heavy-handed, scorched-earth tactics to me.
[ link to this | view in thread ]
Anonymous Coward, 19 Jun 2012 @ 6:00am

I think we're missing one of the key points. Everyone is arguing over what color the hippo is; brown, blue, pink, etc. One of the main arguments against Tugboat's theory is that the hippo is not a hippo, it's a giraffe.

EEF argues preemption. Copyright law trumps state tort common law. Negligence is not even an argument that can be made.
[ link to this | view in thread ]
sophisticatedjanedoe (profile), 19 Jun 2012 @ 8:16am

Re:
It's not even a giraffe, it's a capybara. This case shouldn't have been conceived in the first place, if plaintiff would possess at least a trace of what majority calls "soul."
[ link to this | view in thread ]
OneStepBack, 19 Jun 2012 @ 8:32am

As mentioned above, the registration for this motion picture is invalid. Liberty didnt even register the movie under the correct Title, despite this being a requirement by the Copyright Office. They require that the title on the registration be exactly as it appears on the movie itself.
[ link to this | view in thread ]
Anonymous Coward, 19 Jun 2012 @ 9:49am

Re: Re:
everyone knows what guns can do, not everyone knows what harm can be done leaving an open wi-fi!

Its like leaving this forum open, you never know how many stupid comments or analogies will get posted!
[ link to this | view in thread ]
YouReallyareCoward, 19 Jun 2012 @ 10:45am

Re:
Your logic is actually true for the porn companies that are filing these cases. They are keeping their vaults with cash open, letting it get stolen and pointing to guys with cash on main street.
If they were serious they be asking for DMCA notices.
[ link to this | view in thread ]
Anonymous Coward, 19 Jun 2012 @ 10:51am

Re: Re:
You're right, had i put more than an ounce of thought into it, I would have replaced giraffe with Chupacabra
[ link to this | view in thread ]
That Anonymous Coward (profile), 19 Jun 2012 @ 11:03am

Re: Re: Re: Re:
I'm waiting for more people to notice that the identification was helped by looking at the records of people who were ever clients of Corbin Fisher... its not the first time.
[ link to this | view in thread ]
That Anonymous Coward (profile), 19 Jun 2012 @ 11:13am

Re: Re: Re: Re:
Why attempt service on the party your after when you can attempt to serve their parents and hope to cause a fracture in a family by outing their child. Any bit of leverage can be useful afterall. So what if they claim they didn't do it, offer to go door to door in the neighborhood asking questions trying to ruin your name... or pay up and make it all go away.

Besides Randazza has an expert, whom he refuses to name despite my repeated requests, who claims nothing bad will happen from kids being outed or threatened with outing. Like with most things until there is a bodycount I guess no one else will care.
[ link to this | view in thread ]
That Anonymous Coward (profile), 19 Jun 2012 @ 11:24am

Re: Re:
While the EFF filed briefs in other cases for USCG cases, and even some of the str8 porn shakedowns, when people sought help from EFF for gay cases they never had enough resources.

They didn't have enough resources to enter into any of Evan Stones cases, and when outsiders finally were DRAGGED in, funny that the case is bogus and he was breaking the law.

When you have boutique FL lawfirms trying to extract money using the Writ of Pure Discovery for films without US Copyright, and even if they were granted the damages would be capped at actual not statutory.

Maybe I'm just getting tired of doing the work EFF and others should be doing. Fighting a fight that is not mine, but helping people overwhelmed by a legal system and lawyers who only want to get paid even if there is no truth in the allegations. Drawing attention and hoping the white knights leave the tavern, get on their horses and engage the trolls in battle.
[ link to this | view in thread ]
That Anonymous Coward (profile), 19 Jun 2012 @ 11:27am

Re:
Why let a silly thing like the law get in the way of scaring people into paying you.
[ link to this | view in thread ]
Anonymous Coward, 19 Jun 2012 @ 7:12pm

Re: Re:
Between TAC and SJD am still recovering from last night's gut busting hilarity. Tugboats still sink in the Ocean of Common Sense.
[ link to this | view in thread ]
Raul (profile), 19 Jun 2012 @ 7:16pm

Re: Re: Re:
BTW Anonymous Coward must be pissed as the llast few posts by AC have been by me, Raul. Must be a Ghost in the Machine.
[ link to this | view in thread ]
BentFranklin (profile), 20 Jun 2012 @ 7:49am

Re: Re: Re: The EFF is lying
What if someone owned some fenced land but left the gate unlocked and there were crimes being committed on the land by others and the owner knew or should have known and never locked the gate.

Would the land owner be negligent in this case? Would they have owed a duty to the crime victims?
[ link to this | view in thread ]
Anonymous Coward, 20 Jun 2012 @ 9:04am

Re: Re: Re: Re: The EFF is lying
If a dead pterodactyl is inside the fenced area, than yes.
[ link to this | view in thread ]
Paulie, 20 Jun 2012 @ 9:42am

Re: Re: Re: Re: The EFF is lying
That depends, what kind of shoes were they wearing?
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2012 @ 6:46am

Re: The EFF is lying
Just took at the docket and you're listed as counsel for the plaintiff. Seems you recently filed a declaration on behalf of the plaintiff also. Now who is a liar?!
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2012 @ 6:47am

Re: The EFF is lying
Just took at the docket and you're listed as counsel for the plaintiff. Seems you recently filed a declaration on behalf of the plaintiff also. Now who is a liar?!
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2012 @ 6:47am

Re: The EFF is lying
Just took at the docket and you're listed as counsel for the plaintiff. Seems you recently filed a declaration on behalf of the plaintiff also. Now who is a liar?!
[ link to this | view in thread ]