Unsecured wifi might be contributory negligence

Roland Perry lists at internetpolicyagency.com
Mon Feb 20 15:43:32 GMT 2012

In article 
<CADWvR2i9VbLCoWmOBJSqv0VW884YBoKKj4TP-zKAoeO1VwMCGw at mail.gmail.com>, 
Igor Mozolevsky <mozolevsky at gmail.com> writes

>> 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

It's not havoc, but risk, and is passed on to subsequent inhabitants.

>> 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?

That's why discussion of liability of intermediaries is so important.

It normally excludes the issue of "involuntary intermediaries" though.

>>> 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?),

And aren't you arguing that someone who apparently "needs" to run an 
open domestic wifi point could be a casualty?

>> 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?

I don't think anyone has decided yet.

>How are you going to prove that a bad thing has happened?

That's relatively easy. Seeing spam emanating, or a copyright work being 
shared, or harassment taking place.

Roland Perry

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