Unsecured wifi might be contributory negligence

Igor Mozolevsky mozolevsky at gmail.com
Mon Feb 20 14:05:39 GMT 2012

On 20 February 2012 09:41, Roland Perry <lists at internetpolicyagency.com> wrote:
>  Igor Mozolevsky <mozolevsky at gmail.com> writes:


>> I am getting more and more convinced that comparing
>> this situation to driving cars is not helpful at all


> Perhaps building regulations is a better analogy, and not installing unsafe
> DIY electrical outlets and gas fires in your house?

I'm not convinced that helps either. Insofar as the electrical outlets
are concerned, only the end-user can cause havoc not some drive-by
electricity hijacker, and the havoc is limited to the house (or a few
houses at worst) not to some third party at large (this, incidentally
goes well with Lord Atkin's "legal neighbour" principle in tort---you
can identify to whom you owe duty of care---someone living in Aberdeen
is not going to have their house destroyed by one's poor electrical
wiring in Plymouth). With respect to gas, that's the whole reason why
Mercaptan (or similar) is added to the natural gas---it's pretty easy
to detect a "breach", whereas the situation is entirely different to a
wifi box...

>> Of course we have not touched upon why imposition of such laws should
>> be the case---if you accept that connectivity to the Internet is
>> ubiquitous then would you not be imposing a positive obligation to a
>> small class (IP rights holders) on the population as a whole (cf. car
>> drivers being a distinct class of population)?
> I think I've mentioned it several times. It's so the householder can't hide
> behind the figleaf of "someone else did it". As a second order, some
> miscreants might be dissuaded from bad behaviour if they knew they had to
> use their own connectivity to do it.

Are you not ending up in a situation where the householders are far
worse off than public wifi providers in this scenario?

>> Yes, but again, you are ducking the "who is responsible" issue---all
>> the parties (domestic users, ISPs, manufacturers, and IP rights
>> holders) have competing, and quite often, mutually exclusive
>> interests.
> Which you could characterise as a market failure, and hence a need to
> regulate...

I'm not following this argument (isn't the whole idea of a market to
balance various parties' needs?), are you saying that the need to
regulate arises because the IP rights holders are being unduly
oppressed at large; because, so far, the arrangement appears to be
working for all but those?..

> First you prove a bad thing has happened (I've never suggested that
> copyright infringement is either the only, or the most serious, thing that
> might happen). Then you have a penalty (proportionate, obviously) for the
> subscriber if he manages to convince you it was another person who did it.

Proportionate to what---the alleged infringement, householder's
income, some other yardstick? How are you going to prove that a bad
thing has happened? In a criminal prosecution, you will most likely be
wanting to seize and analyse the suspect's equipment because of the
high threshold the Crown has to reach to convict (in which case "my
router was hijacked" defence is irrelevant), and in a civil case,
every time third-party "evidence" was being adduced, the cases were
dropped as soon as the cases were transferred to specialist court
[1,2]. For a civil case, I would hazard a guess that only expert
evidence of wrong-doing by the defendant would stand to scrutiny;
again, the router problem goes away. This circles back to the issue of
whether the legislation is needed at all...

1. MediaCAT v Andrews & ors: http://www.bailii.org/ew/cases/EWPCC/2011/10.html
2. Golden Eye v Maricar: http://www.bailii.org/ew/cases/EWPCC/2011/27.html

Igor M.

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