Unsecured wifi might be contributory negligence

Igor Mozolevsky mozolevsky at gmail.com
Sat Feb 18 14:53:35 GMT 2012

On 18 February 2012 14:38, Roland Perry <lists at internetpolicyagency.com> wrote:
> In article
> <CADWvR2h8U1y6_3GB3R4FL25CXZQn5G+hojNFr-wF+ZuudTTu+Q at mail.gmail.com>, Igor
> Mozolevsky <mozolevsky at gmail.com> writes
>>> I'm not sure why "contributory negligence" has morphed into "a duty of
>>> care".
>> Because, to have a claim in negligence you need to show three things:
>> duty of care, breach of that duty and injury (damage); without first
>> establishing duty of care, talking about breach of that duty is...
>> academic, if that...
>> Now, whether IP rights infringement amounts to "damage" under Civil
>> Liability (Contribution) Act 1978 is a separate issue...
> You still seem to be talking about UK law, when my posting was about a
> lawsuit in the USA.

I don't see what practical or policy point can be made discussing the
lawsuit you mention only in so far as the USA is concerned, I don't
know if there are any American lawyers who can comment on the position
of the law state-side with respect to that. So, simply focusing on the
States is kind of pointless, for the purpose of this mailing list,
would you not agree?

Besides, from what I am lead to believe (by "authoritative" sources
like the TV) is that because of lack of cost sanctions/awards, people
State-side can simply be sued into non-existence or "bully" into
settling because they can't afford a lawyer (or find a pro-bono one).
>From this, arises a situation where people with cash can bring
frivolous lawsuits and settle them with a profit...

> But if you are saying that anyone in the UK who accused of P2P copyright
> infringement has an automatic cast iron defence if they have an open wifi,
> then that's quite an interesting conclusion. And something to feed into the
> Digital Economy Act debate (which I hasten to add I've not been following at
> that level of detail).

Absolutely not what I was saying. What I was saying is that claiming
any form of negligence by an owner of an evidently unsecured wifi
router is a long stretch. If someone was asserting the defence that
you propose, they could either consent to a search order of their
"equipment" (PCs, external HDDs, &c) or the party claiming
infringement is free to apply to a court for a search order. I don't
see a practical problem with the scenario you envisaged there...

Igor M.

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