

Are You Guilty If Pirates Use Your Internet? Lawyer Says No - Garbage
http://torrentfreak.com/are-you-guilty-if-pirates-use-your-internet-lawyer-says-no-110806/

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zbanks
This is supposed to be paired with the alternative viewpoint:

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

[http://torrentfreak.com/are-you-guilty-if-pirates-use-
your-i...](http://torrentfreak.com/are-you-guilty-if-pirates-use-your-
internet-lawyer-says-yes-110806/)

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

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

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

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

~~~
hugh3
But this is how arguing about the law so often works. It's not clear what the
law should say in a new case, so we make analogies to cases where there's
precedent.

The question falls into the general class of problems "If you provide the
tools for someone else to break the law, do you have any responsibility when
they do?" And that's a huge class of problems, with precedent both ways for
various subcases. You _are_ partially responsible if you leave a loaded gun
lying on a park bench and somebody shoots someone else with it. You _aren't_
partially responsible if someone breaks your window, picks up a piece of
broken glass and goes on a stabbing spree.

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

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

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

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

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

[http://tech.blorge.com/Structure:%20/2010/05/12/german-
court...](http://tech.blorge.com/Structure:%20/2010/05/12/german-court-
effectively-outlaws-open-wi-fi/)

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

~~~
A1kmm
New Zealand recently passed a law (which the US government asked for,
according to a Wikileaks cable, and the government here rolled over for them)
which creates civil penalties for being an 'account holder' with an 'Internet
Protocol Address Provider' if the IP address is found to have downloaded
copyrighted material.

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

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

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

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

I can't.

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

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

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

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

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

