Unsecured wifi might be contributory negligence

Nicholas Bohm nbohm at ernest.net
Sat Feb 18 13:27:45 GMT 2012

On 18/02/2012 11:06, Igor Mozolevsky wrote:
> On 7 February 2012 16:24, Roland Perry <lists at internetpolicyagency.com> wrote:
>> "A federal lawsuit filed in Massachusetts could test the question of whether
>> individuals who leave their wireless networks unsecured can be held liable
>> if someone uses the network to illegally download copyrighted content."
>> <http://www.computerworld.com/s/article/9224003/Copyright_lawsuit_targets
>> _owners_of_non_secure_wireless_networks>
> Despite all the analogies in the thread focusing mainly on breach of
> duty of care, there is no established duty of care between an Internet
> user and the rest of the users on the Internet, and especially no DoC
> of an Internet user to an IP rights holder. Even if the first leg
> (foreseeability of damage) of the Caparo test could be satisfied, the
> test would fail at the second hurdle (proximity of the relationship)
> and  the third (justice and fairness). On top of that, since there is
> no physical damage, you have the whole mess of pure economic loss to
> deal with...

I entirely agree.  And since pure economic loss isn't recoverable (with
exceptions for the "advice" cases), and damage to intangible assets like
copyright (even if it really is "damaged" in the relevant sense) is pure
economic loss, that further supports your points.

> I have no idea to what extent the American law follows these
> principles, but I think it's going to be a very long time before
> similar is tried in this jurisdiction.

I agree.  Statute is the only risk.

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