Unsecured wifi might be contributory negligence

Nicholas Bohm nbohm at ernest.net
Sat Feb 18 15:03:06 GMT 2012

On 18/02/2012 14:31, Roland Perry wrote:
> In article <4F3FA4BA.6020201 at ernest.net>, Nicholas Bohm
> <nbohm at ernest.net> writes
>> I think the original reference was intended to be about whether ISPs
>> were liable to contribute to their customers' loss if their customers
>> were sued successfully by rightsholders as a result of using unsecured
>> routers and the ISPs had failed to do what they should to help the
>> customer secure the router.
> I think it's about householders claiming to be unable to show it
> wasn't them who stole the movie, because their wifi was unsecured (so
> they can't pass the buck to someone else who they can identify).

The burden of proof is on the claimant, not the defendant.  If the
claimant shows that the defendant was the subscriber, and the defendant
does bot claim that any other person had access to the connection, a
court could infer that the defendant was the downloader.

If the defendant's claim (and evidence) is that there were several users
(either because the router was unsecured or because its password was
shared with a number of family members and visitors), and that the
defendant did not authorise them to download infringing materials, I do
not see how the claimant can establish the defendant's liability even on
the balance of probabilities.

(I'm talking about the English legal position, this being a UK list; I
assumed your reference to an American case was to promote discussion of
the corresponding English or UK issues.  If you want a debate about the
US legal landscape, you may have to try your luck elsewhere, I suspect.)

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