Copyright Trolls Still Arguing That Open WiFi Is 'Negligent'
from the no,-it's-not dept
We've written a few times now about the argument used by some copyright trolls that leaving WiFi open is negligence. This has become a common claim in cases where an accused defendant claims they did not do any unauthorized file sharing of the work(s) in question, but that since their WiFi is open, it could have been just about anyone who accessed the network. The trolls are trying to wipe out this defense by arguing anyone who leaves their WiFi open is "negligent." So far, however, the courts have completely and thoroughly rejected this argument multiple times. It's basically dead.But, apparently, that doesn't stop some from still trotting it out. The CopyrightClerk site has the news of a recently filed lawsuit by Daniel Ruggiero, which has a number of claims -- with the final one being the same old negligence theory.
Defendant had a duty to secure his Internet connection. Defendant breached that duty by failing to secure his Internet connection.Of course, there is absolutely nothing that supports those two statements, and the previous courts looking at such claims have already made that clear. Those rulings may not be precedential on this court (eastern district, Pennsylvania), but judges often are interested in how others have ruled on similar issues. One hopes that the defendant in this case, Andrew Burdziak, will make sure whoever represents him makes the judge aware of those other rulings.
Reasonable Internet users take steps to secure their Internet access accounts preventing the use of such accounts for an illegal purpose. Defendant’s failure to secure his Internet access account, thereby allowing for its illegal use, constitutes a breach of the ordinary care that a reasonable Internet account holder would do under like circumstances.
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Filed Under: copyright, negligence, trolls, wifi
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Good bye WI FI hotspots
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Re: Good bye WI FI hotspots
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Re: Re: Good bye WI FI hotspots
What I do, which is admittedly geekier than most people would tolerate, is run my Wifi open, but firewall it off so that there's limited unauthenticated connectivity (as a courtesy to neighbors and passersby) and use a VPN so that my own devices get full access.
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Re: Re: Re: Good bye WI FI hotspots
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Re: Re: Good bye WI FI hotspots
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If no network nodes are communicating you a bit stuck!
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Re: Re: Re: Re: Good bye WI FI hotspots
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Also, LAW! Law... LAAAAW!!!! Pirate Mike! Y U NO DISCUSS ME! Law! *mumblerumble* /aj
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It not really dead - it's just like 1st amendment issues on copyright Mike, they haven't been argued right.
Just ask Lessig...
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Re: Re:
Please re-read my comment and try to actually address it next time, rather than giving a toady response.
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It was dead. Negligence will float right back up to the surface once the six strikes program is implemented. Once you have a strike, you have notice that your wifi is being used for unlawful purposes. Once that happens, you are on the hook. Better still, with each successive strike- you are listed on ever shrinking target lists for plaintiff attorneys. And each successive strike undermines your defense. As a standalone, six strikes is just adequate. But for target acquisition and eroding potential defenses, it's hard to imagine a more useful tool.
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Fuck these nincompoops.
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Re:
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Case Law
Apparently a local reprobate ( aka "Timmy" according to court records ) used Mr. Lawson's garden hose to drench the Red Haired Girl.
Mr. Lawson was found guilty of "failure to secure a water-dispensing fixture" and ordered to pay court costs as well as the price of a replacement hair band and a new dress for plaintiff's "dolly".
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Re: Case Law
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Re: Re: Case Law
If threats to the President were made from my number, would I not be considered 'negligent' for putting such a system in place?
I fully agree there's no requirement to secure your wifi, but as the account holder I am in the end responsible for its use am I not? Perhaps not criminally liable, but certainly civilly (sp?) I would expect.
And the obligatory car analogy -
if my car is seen robbing a bank, you can bet there going to be talking to me about 'who' was using my car. Is leaving my car on the street with the keys in it 'negligent'?
Just arguing the devils advocate positions, interested in any ideas to counter them.
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Re: Re: Re: Case Law
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If I leave my kids' toys on my lawn and your dog comes over to my lawn and chokes on one of them, am I responsible for the dog's death? Am I negligent for not having built a fence around my yard to keep the dog out?
The only responsibility that you might bear for the use of your internet connection will depend on the contract with your internet service provider. They might be able to shut off your service if they feel you've violated their terms of use, but that's about it.
If you leave your car on the street with the keys in it, I wouldn't say you were negligently responsible for the commission of the crime of bank robbery. The bank robbers who also stole your car are responsible for that. It would be entirely different, however, if the bank robbers asked if they could borrow your car to commit a robbery and you said okay.
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Re: Re: Re: Case Law
And yet, strangely, we realise that punishing the ISP for user behaviour on the service they provide is idiotic... well we mostly do there are a number of people who would like to use this pretty much self same argument to force ISP to police their networks.
If I want to provide a wifi hotspot because, well, I'm a good person who wants to share I shouldn't be held liable if some one uses that to infringe any more than an ISP should.
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Re: Re: Re: Re: Case Law
They are responsible, period. That's why the law carves out Safe Harbors to *exempt* them from that liability in certain circumstances.
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Fair enough, clearly I was wrong.
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Re: Re: Re: Case Law
Almost certainly not.
And if you have landline service, you probably do leave a live phone outlet outside your house. Most people don't lock their Telephone Network Interface box. If you didn't put a lock on it yourself, then anyone can walk right up to it, plug in a phone, and make calls.
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This is why the negligence claim in a WIFI situation is also at fault, there is absolutely no implied, contractual or social duty under law anywhere in common law countries and since the first element of tort of negligence cannot be shown there can be no negligence.
If the court stated there was such a duty the knock on effects by such an egregious precedent would basically destroy economies.
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Re: Re: Re: Case Law
Requires looking at the evidence, not just the allegations.
The person with the wifi, which was hacked, is not in jail for the crimes committed by someone else.
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Re: Re: Re: Case Law
> outside my house? If threats to the President
> were made from my number, would I not be
> considered 'negligent' for putting such a
> system in place?
No. What the hell do you think pay phones are?
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Re: Re: Case Law
Aside from their identical levels of inanity.
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/sGodwin
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Anaology Away!
If it wouldnt apply in the "real" world, why wouldnt it also apply in the "virtual/digital" world. Oh right, because its "on the internet" therefore de facto illegal.
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Re: Anaology Away!
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If you're arguing that open wifi isn't serious enough negligence, then you're validating the argument.
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Re: Re: Re: Re: Anaology Away!
Or would you argue that leaving a wifi network open in the middle of nowhere where no one ever uses it would still be negligence? By itself, open wifi cannot be negligence. If you named the wifi network "use me to commit copyright violation," you might have a case against the owner.
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Re: Re: Re: Re: Re: Re: Anaology Away!
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Re: Re: Re: Re: Re: Re: Anaology Away!
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Six strikes should help make unsecured wifi much less common. Once someone gets a notice that their IP address was found to be downloading infringing material, the excuse evaporates. At that point, further claims of "oops" go out the window and the stage is set for a compelling claim of negligence.
Negligence will be judged in a case specific fashion. But all of the freeloaders who have secure wifi but claimed that they did not and that "someone else" must have accessed it will soon be denied that refuge.
Watch and see how quickly lawsuits are filed by rights holders after an individual gets a couple of strikes. Those strikes are notification and failing act on notification pretty much makes for a bulletproof case of negligence.
Six strikes has implications far beyond the potential to have your account throttled or being forced to complete some educational program.
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The use of the gun analogy is still wrong because wifi isn't a weapon and so the legal requirement for securing it is not there. Nobody died because someone left their wifi open.
Further, open wifi is not against the law. There's nothing to be negligent about. Some people intentionally and willingly allow others to access their network. At most, this might be a violation of their contract with their ISP.
"Those strikes are notification and failing act on notification pretty much makes for a bulletproof case of negligence."
Except for the fact that notifications are not proof at all. None of the notifications are evidence. They aren't investigated, verified evidence. They're accusations.
This is the entire problem with the six strikes approach. You and the ISPs who agreed to it seem to assume that all accusations are legitimately true. You assume guilt without proof. Even civil courts require more evidence than, "we told him he was accused of something and therefore he clearly did it, your honor!"
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Re: Re: Re: Re: Anaology Away!
Basically there are many cases where a duty has been shown and that duty breached but since there has been no harm or in some cases only de minimus harm then the actus of negligence fails. And in this case with WIFI no duty means no breach means no harm, means no foul! means these cases should be placed into the round filing case (or maybe the SLAPP pile)
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Re: Re: Re: Anaology Away!
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Re: Re: Re: Anaology Away!
Corporations are people.
Piracy is killing music corporations.
Open WiFi allows access to the Internet.
There's piracy on the Internet.
Therefore, Open WiFi kills people.
/lawyer
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Re: Analogy Away!
"Reasonable homeowners take steps to secure their ladders, ropes and crowbars preventing the use of such items for an illegal purpose."
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Re: Re: Analogy Away!
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This is my house.
Abuse is the responsibility of the abuser (i.e. your cracking habit is your problem and you're responsible for your actions)
Providing a network access point is a choice that YOU make whilst taking your own requirements and circumstances into consideration. Not entirely unlike abortion.
They'll use the excuse "only businesses can do this" and, as I've said before elsewhere: Fuck businesses and coffee shops. I'm a person too.
Barring those that know no better about the state of their network I kindly present to you: Personal Choice. With a healthy dose of reason thrown in you've quite the kit to manage the pitfalls of life.
The only, and I do mean only, thing negligent are all these fucks of forces still trying to tell you what to do because money.
How about a business plan? One that will actually do without stomping everybody's bitch ass but your own. The one you currently manipulate and the one that you may have in the future stands to affect every single human being on the planet. In other words - We Own You. Get along or move along.
Aged and ignorant copyright pussies can't hang. If you can't figure shit out then GTFO and get a busboy gig.
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Rugierro
As for the claim, I don't think the crooks believe a bit in the likelihood of success, it's just a part of a "spaghetti-on-the-wall" approach, that's it.
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Re: Rugierro
These cases do come from Steele and the merits and filing of them are questionable.
The filing claims that the target might be a victim of a hacker, but then claims the defendant did all of these things, then offers up well even if he didn't he should be responsible. This is not a lawsuit, it is a weapon in an extortion scheme. For $350 to return at least 10 times that in a settlement, you'd have to be crazy to not try.
This is Steele trying to copy Randazza's handiwork, it is not the first time Steele has tried to ride another copyright trolls coattails.
When Randazza got the "groundbreaking" $250,000 win*, it soon after appeared in Steele threat letters.
* - it was not a win, it was a settlement agreement made outside of the courtroom. The actual amount was closer to $25,000 with monthly payments that as long as they were made on time woudl reduce the overall amount due. The target also had to behave forever or else face the full amount. Given how they got the information about the target, and used his position to make their claims stronger this is really not a good thing.
Now digging into the the new Prenda puppy, you will notice I might not show them any respect as none is due, his name appears on multiple websites and lists him as a primary on at least 1 pimping the same 50 lawyers names in every state.
He has a history with someone raided in mortgage payment scams.
The name and age match that of someone arrested for lying in court in another case in New Hampshire, but I have been unable to confirm if that in indeed the puppy or not.
His expensive NY office suite, is a box in a UPS store.
His "lawfirm" uses a PO Box in MA.
His domain is owned by another "firm" that controls the domain for one of the 50 states 50 lawyers sites, but even owning a domain his legal paperwork is sent to a hotmail address.
This is a lawyer who has filed more cases than he can reasonably manage, and I doubt he has informed the court of the similar cases filed in the jurisdiction.
The suing party represented is an offshore "corporation" who does not hold all of the rights to the movies in question, but has been transferred merely the rights to distribute the movie on bittorrent networks. This sounds much like the sham transfers done by Righthaven.
The titles were transferred to an AF Films, and AF Holdings has filed. Unless of course they screwed up the contracts in the first place.
Research is being done into the companies, but hitting a brick wall. One would be curious if the payments made the the offshore company are being properly taxed and reported.
So a lawyer with questionable legal background, filing cases in courts not familiar with the copyright trolls making dubious unprovable claims... Extortion on a higher level maybe?
But then when you sign up with a lawfirm that robocalls Does (even those represented by lawyers which means don't call them or the court fines you) and sends demand letters to people from dismissed cases, and is being chased by a couple of state bar's... yeah your pretty much scum.
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Re: Re: Rugierro
I'll do a bit of a research and move forward.
He should have expected us :)
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Re: Re: Re: Rugierro
http://www.apintertrust.com/offshore_company/nevis_tax_haven.htm
No wonder we can't crack AF Films, AF Holdings, or 6681.
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Strange world we live in.
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Re:
Stolen cars generally aren't returned after the crime is committed, neither are laptops, phones, etc. Since you're no longer in possession of your property, your liability doesn't exist.
Your open WIFI...you still have and as such would still be liable for uses of it.
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I don't think that's a well-applied analogy. Nobody's taking the wifi. At best, they are "taking" some of the bandwidth, and that bandwidth doesn't get returned (it was used). So, by your analogy, there would be no liability.
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Of course it's not negligent.
Seriously, though, on the early Internet, the whole thing was open. You used one connection to route to another. This isn't as apparent today, since routers and switches on the backbone are now dedicated devices. But we are getting back to that model with things like torrents, which let the end nodes participate in Internet physical layer connectivity.
ISPs don't like that, because they want to charge more for being a full participant on the Internet. "Whaddaya mean, I can't run my own email server on the static IP that you gave me? Watch me!" Someday, someone will sue them for false advertising, because they aren't delivering the whole Internet, but just a small slice of it.
Someday, it will be common for end nodes to control their own social network functions, too, and we will see a revival of the old Fidonet and other mail/topic networks. There is nothing new under the sun.
But that's another bee in the **AA's bonnet, isn't it?
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Wow
Not securing your WiFi is not only negligent because some degenerate criminal could use it to commit a crime like stealing copyrighted content someone worked hard to create, but one of your neighbors could use it so aggressively you have little or no bandwidth for yourself.
Further, you could be hassled by authorities if some thieving scum used your WiFi to steal.
Matt
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Re: Wow
If Starbucks or airports were declared negligent for someone using their hotspot illegally then no one would bother offering such a useful service. Where would you be then when you want to check your work emails when waiting on a flight?
Here's a whacky idea, personal responsibility. No one is liable for illegal downloading except for the downloader. If people accepted responsibility for their own actions rather than looking for someone to blame, the world would be a better place.
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Re: Re: Wow
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In fact, I heard rumours that it became mandatory to include this option in newer routers. I think it is labelled "block all internet traffic".
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Re: Re: Re: Wow
Airports, usually. It's a captive market and registration (and of course payment) is usually required.
Micky D's, Burger King, libraries, and etc. not so much. Drive up and use your smartphone all you want. Don't even have to enter the building.
Heck, there was an initiative (unfortunately, the recession killed it) in my county to build county-wide free WI-FI. Lower speeds available to all without registration. Higher speeds at a price. The company involved was building it for free to the taxpayers and would earn thier return on the money for the additional speeds.
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Not sure. Do they? And wouldn't a VPN connection route around that anyways?
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Re: Wow
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Re: Re: Re: Wow
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Re: Re: Re: Re: Wow
If this site didn't want disagreements, there wouldn't be an open comments section. There would be moderators and deleted comments everywhere.
Techdirt doesn't do that. Therefore you are free to agree or disagree and to comment on such as much as you want. You disagree and your comment is here, therefore it is proof that what you have typed is in fact false.
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Re: Wow (hey this is fun)
Stupid negligent content creators.
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Re: Wow
Nope. Just people who conflate stealing with copyright infringement.
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Re: Wow
We label as trolls the people who constantly post anonymously here just to attack Mike with unfounded, illogical, and ad hominem statements, who don't contribute any rational or reasonable comments to the discussion and only seek to throw tantrums and derail discussions. If you aren't familiar with these people because you don't read the comments on Techdirt articles much, we can forgive you your ignorance.
That said, "stealing is wrong" has nothing to do with copyright infringement since there is no theft. There's no reason to get into a discussion about this point because I'm pretty sure we all doubt that any IP maximalist can be convinced of the difference and we've rehashed them a thousand times it seems.
Not securing your wifi isn't negligent because there exists no requirement under law that you secure it from illegal use. If you want to claim there is, please cite the applicable law or statute. In many respects, there can be no practical difference between allowing use and allowing illegal use. Since there are substantial non-infringing uses for having an open wifi network, it cannot be the wifi owner's fault that illegal acts were committed.
Is a store liable for murder if I buy a kitchen knife from them and stab someone to death with it? Is a store liable for copyright infringement if I purchase blank media discs and infringe copyrights with them? What if the tree in my yard bears fruit and a neighbor takes that fruit and secretly feeds it to someone who is deathly allergic to it, am I then negligently responsible for the murder? Of course not. That'd be absurd.
The amount of work someone puts into copyrighted content is irrelevant. Would it be less of a crime in your eyes if someone were violating the copyright on something that the creator(s) put little effort into?
If you open your wifi and your neighbors use it so aggressively that they use up your bandwidth, that's your problem. That has nothing to do with charges against you of negligence. Same with getting hassled by the authorities. If the authorities are inept enough to think that an IP address or a wifi network correlates to a single person upon whom they can pin a crime, it's their fault that they're harassing you.
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Re: Re: Wow
The author seems to label as "trolls" those who advocate for the content owners and who wish for people to pay for their acquisitions. I know a forum troll is someone who contributes nothing of value to the discussion, but that term is more and more used to dismiss someone who disagrees.
I say theft has occurred. If you sneak into a theater, take an empty seat, and watch a movie without paying for a ticket, have you not stolen from the theater? You haven't deprived anyone of any actual good. The photons your eyes used would have been wasted on the seat back. You have, however, violated the wishes of those who brought that movie to you and displayed it. And let us not quibble over wear on the seat you used and the sound your hair absorbed.
If you don't think that is stealing, you will never agree with me that downloading something without permission when the content owner wishes people to pay for it is also stealing.
My apologies for not saying this earlier, but I mean negligent in the practical sense, not a legal one. It is a simple matter to secure your WiFi. If you choose not to do so, you should be held partially responsible for any crimes committed as a result.
If someone steals a gun from your locked home, you wouldn't be responsible for a crime committee with it. However, if you left it lying in the street you should and, I'm sure, you would. That is an analogous, though far more extreme, scenario.
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Re: Re: Re: Wow
"The author seems to label as "trolls" those who advocate for the content owners and who wish for people to pay for their acquisitions."
I've never seen that be the qualification for Mike's use of the term troll. He always seems to be referring to the IP maximalists who post frequently to this forum and do all the things I mentioned before. There are some IP maximalists who don't troll and they make politely worded disagreements in the comments and we have interesting discussions. And then the trolls show up and call Mike a pirate apologist in the comments for posts that have nothing to do with copyright violation... The behavior, not the group affiliation, is the source of the definition of a troll.
Watching a movie without paying the theater is at most "theft of services" in some jurisdictions. But you had to trespass to commit that crime, so there are other crimes being committed.
While you may equate them, copyright violation is not called theft in matters of law (except by people trying to enforce the connotation). People who are charged with criminal copyright infringement are not charged with theft of services. So that just doesn't work from a legal standpoint. If you want to discuss moral equivalency, then we have to bring in the question of whether it's more unethical to monetarily support an industry that lobbies congressmen and writes laws that subvert the democratic processes of our government than it is to watch a movie without paying for it. The first undermines our entire society. The second means rich media companies will just have one more excuse to deny royalties to the actual artists who created the works that they exploit for an obscene profit.
Violating "the wishes of those who brought that movie to you" is not a crime, so it's irrelevant to bring that up. Or else I could say that I am a busker who plays (original) music near the subway entrance and people who pass by and hear my music without paying me are violating my wishes since I brought them my music and they didn't pay me as I expected. The wishes of the content creator is irrelevant to the market reality.
"My apologies for not saying this earlier, but I mean negligent in the practical sense, not a legal one. It is a simple matter to secure your WiFi. If you choose not to do so, you should be held partially responsible for any crimes committed as a result."
You just contradicted yourself. If you mean it's practically, but not legally, negligent, how can you hold someone even partially responsible for any crimes committed as a result? There has to be a legal basis for holding someone responsible. You seem to be saying it's not currently a law and you want it to be. But that would infringement people's freedom to share their wifi, which may be authorized by their ISP.
"If someone steals a gun from your locked home, you wouldn't be responsible for a crime committee with it. However, if you left it lying in the street you should and, I'm sure, you would. That is an analogous, though far more extreme, scenario."
It's not analogous because a wifi connection is not a weapon that legally must be secured. There are laws against not securing your weapons. Parents have been charged with negligence when their kids got into their guns and shot someone or themselves.
Giving away wifi access is like giving away chocolate. You could shove that chocolate down someone's throat who is allergic and put them into anaphylactic shock and kill them, but the person giving away the chocolate cannot be held negligent in giving it away since there's no reason to believe that what they're giving away will definitely be used in the commission of a crime by another person. Same goes with wifi.
Talk of respecting wishes is great, as long as it goes both ways. The media companies don't respect the wishes of the citizens of the country to not have their influence over their government representatives swayed by corporate lawyers and lobbyists. So when the media companies stop trying to subvert our democratic processes for fun and profit, I'll start being concerned about respecting their wishes as far as their business concerns go. Deal?
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Re: Re: Re: Re: Wow
This is a waste of time. I wish my employer would pay me to go skiing but that's not how the world works. If you want to justify morally reprehensible, to my way of thinking, acts by calling into question our societal and economic structure, there is no point debating with you. I believe in democracy and capitalism. You seem to believe in socialism. That's great, but our fundamental differences make further discussion pointless.
Enjoy your day.
Matt out
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Re: Re: Re: Re: Re: Wow
Also, just to help you out, he pointed out that what you feel and what author's wish are irrelevant. In the eyes of the law, copying is NOT theft.
Also, as he pointed out CORRECTLY, sneaking into a theater is considered theft of services.
But all of that is irrelevant, you want to talk about morality but as has been pointed out repeatedly on this site to people like yourself morality is purely subjective and differs from person to person. To MOST people, copying is not bad nor is it theft. To you it is both.
There is no fundamental difference between MrWilson and yourself beyond he's correcting you and you don't appear to like it, in addition to seem to have completely misunderstood his reply to you.
It is indeed, however, a waste of time speaking to someone who wants to discuss morality regarding something the law has clearly defined one way or another (or not).
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I believe in democracy as well. That's why I'm so passionate about this issue. The regulatory capture, revolving door, collusion, anti-competitive, trust activity, lobbying, corruption, bribery, etc. that the big entertainment companies have perpetrated undermine democracy. So how can you believe in democracy but argue in favor of the forces that are undermining it? Democracy means the people rule. This isn't supposed to be a corporatocracy. What's worse is that we have a representational or indirect democracy. Citizens get access to political power via their representatives in Congress and if that relationship is undermined by corporate lobbyists, then the citizens are actively being disenfranchised. What part of advocating for people having a say in their government is socialism? And what part of letting corporations participate in the corruption of the government and violate free market principles is capitalism?
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That is simply not true. While some jurisdictions require pistol (but not long guns) locks if there are children in the house, many, many more require nothing at all. After all, what the hell good does a firearm do if you have an intruder if you have to unlock the safe or the trigger lock?
So back to an example I gave earlier. If I lived on a farm at the end of a dirt road it'd be no big deal to leave a loaded rifle leaning up against a tree in the front yard while I went inside and ate lunch. But if I live across from a suburban high school??? Or in a high-crime, inner city neighborhood??? Or adjacent to a busy highway??? The standard you have to be mindful of is whether the gun or wifi owner could reasonably foresee that either was likely to misused unlawfully. Six strikes is going to kill the open wifi excuse. Once people receive notice that their wifi was used for an unlawful purpose- all bets are off. That excuse disappears. So far, everyone has been moaning about trivial aspects of six strikes. The real impact is the utility it will provide plaintiff attorneys who will now have a short list of the worst infringers who have been put on notice about previous infringing. If I was one of those guys, I'd be test driving the new Lexus next week.
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Also, regardless of whether there's a law on the books that specifically requires you to secure your firearms, there is case law that dictates that you will likely be charged with negligence if someone uses your firearms for ill purposes because you left it out. There is no case history of this precedent with open wifi, that I am aware of. Feel free to correct me and cite the cases...
Open wifi is not illegal or else every coffee shop in America would have shut their connections down.
Six strikes cannot make open wifi illegal. It's a corporate policy, not a law. Your ISP can cancel your service, but there's a significant difference between that and being charged with or sued for committing an illegal act.
We haven't reached the point of outright corporatocracy yet, so the corporations aren't writing civil and criminal law (out in the open). It's sad that you're cheering on fascism as the basis of our government slowly burns. But at least your profits are secure. That's all that matters, right?
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I didn't say that six strikes made open wifi illegal. I said that six strikes will set the table for civil litigation, as a history of warnings that your IP address was being used for illegal purposes will make getting a judgment that much easier. The fallout from that is that more people will protect their wifi connection.
Don't kid yourself into thinking that six strikes is a standalone remedy. Civil suits can and will follow for those infringers who self-identify with multiple strikes. And the existence of a record of such strikes will contribute to the preponderance of evidence.
Finally, you cannot be disconnected under six strikes but you can be throttled to the point where it will take 3 days to download a movie.
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The underlying legal theory is identical. Can you reasonable foresee something under your direct control being used for an unlawful purpose? If you have received notice that something under your direct control is being used for illegal purposes, does that increase your liability or suggest greater negligence? You know the answer to that.
Also, regardless of whether there's a law on the books that specifically requires you to secure your firearms, there is case law that dictates that you will likely be charged with negligence if someone uses your firearms for ill purposes because you left it out. There is no case history of this precedent with open wifi, that I am aware of. Feel free to correct me and cite the cases...
I don't know whether there is or isn't. I do know that very soon, people will be getting infringement notices. Some of them may advance the defense that it wasn't them, it was someone else taking advantage of their unsecured wifi connection. If they fail to address the illegal use of their wifi connection, they will have a problem in court.
Open wifi is not illegal or else every coffee shop in America would have shut their connections down.
I believe that a lot of businesses use OpenDNS or similar filtering software to guard against abuse. Again, if a business is informed that its wifi connection is being used illegally, it has a duty to remedy the situation. If they don't then the liability becomes their own.
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You're a pirate. You're a pirate. You're a pirate. You're a pirate. You're a pirate. You're a pirate. There I just accused you six times of being a pirate. Explain to me why the fact of being accused correlates to proof of illegal activity.
"Civil suits can and will follow for those infringers who self-identify with multiple strikes."
Because that has worked so well to stop copyright infringement so far... Civil suits are decided on the preponderance of evidence. There is not actual evidence in an accusation.
"And the existence of a record of such strikes will contribute to the preponderance of evidence."
Again, strikes are accusations. They are not proven. They are not evidence of anything other than being accused. You are assuming that an accusation equals guilt.
"Can you reasonable foresee something under your direct control being used for an unlawful purpose?"
That's not a reasonable expectation. If my neighbor borrows some water from me, the usually harmless nature of the water means that I can never reasonably expect that the water under my direct control will be used for an unlawful purpose like drowning someone. It's certainly reasonable with a weapon the specific purpose of which is to be able to harm a human being. It isn't with something as innocuous as wifi. Jack Valenti want's his moral panic and analogy about harmless technology being like a serial killer back.
"I do know that very soon, people will be getting infringement notices."
You mean notices of infringement accusations. That aren't proven. Or even attempted to be proven. That are assumed by collusive corporations to be true.
"Some of them may advance the defense that it wasn't them, it was someone else taking advantage of their unsecured wifi connection. If they fail to address the illegal use of their wifi connection, they will have a problem in court."
How will the innocent ones address the alleged illegal use of their wifi connections? You do realize that there will be innocent people who are accused, right? Just like there has been in the previous attempts to litigate file-sharing in civil court.
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Oh, it's nice to have a respectful reply to work with, though that's not uncommon here.
Regarding the amount of work put into a property, I used the phrase for emphasis, not qualification. While something worth having is more likely than not the result of hard work, I think the wishes of the owner should be respected regardless of how much work it took.
Matt
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Yet in this particular case it's a 10K-budgeted cheap pornography, the copyright to which was assigned to a sham offshore firm, AF Holdings, with a sole purpose of extracting settlements from alleged file-sharers (and "negligent" neighbors)using fraud on courts, lies, lies, extortion, lies.
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Any decent router will allow you to put bandwidth limits and data caps on connections, if so you choose. So this point is moot.
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What's being stolen?
If I DL an anime season, does that mean someone who bought the anime season suddenly loses their DVDs?
If I DL a movie, does that mean Hollywood lost a film reel of that movie?
If I DL a song, does that mean a CD suddenly disappears?
If the answer is "no" to any or all of these questions, then there is no theft going on.
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You allow a neighbor to borrow some tools to repair his vehicle. He promises to return them tomorrow. During that time, he uses these tools to break into and steal a vehicle. You didn't "secure" your tools properly, therefor you are liable for the theft.
A neighbor has a pest control problem, and asks to borrow some rat poison. You let him, he uses it. Later his dog ends up eating the poison. You are liable for the death of the dog. You failed to "secure" the poison properly.
This is the problem with your view. There's 2 main reasons for this. They might not know how, in which case they can't be held liable because they don't know how. The other reason is they are making an intentional choice to allow the access as a service for other people to use. In which case they are protected by law from liability as a service provider. The latter 2 examples show the reason why. If you are allowing some one to use something you have to provide a service to them, it doesn't make sense to hold you liable for trying to be a decent human being. Otherwise you'd effectively be criminalizing helping people, or doing something useful for them.
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The people in question are referred to as copyright trolls because the actions they're taking are an abuse of copyright laws and the court system for financial benefit, not because they believe stealing is wrong. It's a shakedown for money, not some grand moral stance.
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How it this different than Bait Car?
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It might or might not be negligence - but probably usually not.
One could easily imagine a scenario, however, in which the defendant WAS under a duty to take more affirmative steps to protect the plaintiff's content. Perhaps it's because of a particular specific arrangement, e.g., you accept confidential information from the other person under a non-disclosure agreement that says you'll take at least reasonable steps to protect that particular information from disclosure to third parties.
I wouldn't be surprised to see at some point online services inserting an obligation to use wifi security as a condition to subscribing/using such services. As long as ISPs themselves don't do it, it would seem unlikely to open up wifi hotspot-providing merchants to any liability, as Starbucks would not themselves subscribe to the music service that their customer is accessing.
And, of course, these examples are actually more contract-based, though negligence might play into the claims by the plaintiff in these situations as well, as he tries to cover all the bases in his suit against the defendant.
So, anyway, it's not that leaving your wifi unsecured is not EVER negligent, just that it doesn't work to support the claims so far brought by plaintiffs.
HM
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Again, it will depend on the circumstances.
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Re: It might or might not be negligence - but probably usually not.
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Analogy Away 2: The Escalation
You leave your garden tools out on the lawn with a sign that says "use as you need, please return" (NONE of this, of course, applies at all to open wifi, but again you are all focused so narrowly on one part...) and someone takes the garden hoe (YES ITS HOE NO HO!!) and bludgeons his wife to death with it.
The Rah Rah Open WiFi is Your Responsibility No Matter What crowd is saying this means YOU are guilty of murder, or at least culpable, an accessory, if not an INSTIGATOR (yes, you CAUSED it by letting your tools be borrowed!!) and by not "securing" your tools, you are a murderer.
Please help us all understand how that makes ANY sense to ANYONE with a real brain.
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Though this hardly describes you, I will try to dumb it down to your level (if that's possible):
You totally overlook the element of what can be reasonably foreseen. Your retarded scenario falls apart when you substitute firearms for garden tools. Using a garden tool to commit murder? Hard to foresee. Using a firearm to commit murder, much more plausible.
Using anonymous wifi connection to download infringing content.........?? You decide. Or better yet, predict what a judge or jury would say. And not a Techdirt jury, or Chief Justice Masnick. Think about how this plays out before a real judge and/or jury.
Now consider what happens when six strikes is implemented and people get a notice from their ISP that their account downloaded infringing content. Then what? Game, set, match. And you have stripped yourself of the most common defense in mass pirating cases and placed yourself on a short list of targeted defendants who have received prior notification regarding infringing activities associated with their accounts.
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You can hate it and jump up and down all you want, your wrong the courts have already ruled.
While you want the world to take up arms to defend these poor put upon content producers it might help to not pick pornographers to back.
It might help not to pick Prentenda Law, John Steele's latest reinvention.
It might help to not inject yourselves into the argument where it is not clear that Steele or his secret tracking firm are not the source of the file.
It might help to note the sheer lack of DMCA notices to have this material removed.
The sheer fact that your supporting a "lawfirm" (a term I use in the loosest sense of the meaning) who shakes down grandmothers for their SS checks with the dubious claim that they downloaded hard core porn really says something about your moral compass.
This entire extortion scheme will do not a damn thing to stop "piracy", it is much more likely to piss people off even more about copyright and make them less likely to give a crap.
We've had like 3 decades of more and more law, control, demands... and the "problem" is growing... at some point maybe its time to consider this isn't the solution to the "problem" easily solved if they actually compete instead of demand legislation to support a failed business model.
Rail and scream some more how he owes them money for the alleged actions of another on his connection. They can't even prove it was downloaded in the first place... so you have a tough road to make the case.
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