Unsecured wifi might be contributory negligence

Andrew Cormack Andrew.Cormack at ja.net
Mon Feb 20 16:52:50 GMT 2012

> -----Original Message-----
> From: ukcrypto-bounces at chiark.greenend.org.uk [mailto:ukcrypto-
> bounces at chiark.greenend.org.uk] On Behalf Of Ian Batten
> Sent: 20 February 2012 14:54
> To: UK Cryptography Policy Discussion Group
> Subject: Re: Unsecured wifi might be contributory negligence
> On 20 Feb 2012, at 14:05, Igor Mozolevsky wrote:
> >>
> >> 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?
> I think that's a very good point.  Assuming that the government
> wouldn't be so deranged as to either criminalise or impose obligations
> on every cafe in the country that offers WiFi with a latte,

Ofcom's original commentary on the Draft Initial Obligations Code in May 2010 said that imposing obligations on cafe owners was precisely what the Government had done (see s.3.23, 3.30 & 3.31) of http://stakeholders.ofcom.org.uk/binaries/consultations/copyright-infringement/summary/condoc.pdf) :(

More recently they've been saying that they don't have authority to interpret the definitions in the Act, so it may be that their view has changed.

> householders would be placed in a position of having a wide range of
> obligations that business owners don't.  And that's the inverse of the
> case in most analogous situations, where private individuals have lower
> regulatory thresholds.   The implication would be that householders
> have some sort of control over or responsibility for the actions of
> other people in the house which cafe owners don't have over their
> customers, which seems hard to sustain.   And in any event, given that
> many cafes are run by sole traders who aren't even limited companies,
> it would hardly be difficult for a householder to offer WiFi to other
> people in their vicinity as though they were a cafe-owner.   That's why
> regulatory thresholds usually involve things like "being a limited
> liability company".

Worth noting that the DEA doesn't, as far as I can see, do anything to change the position on liability *for* breach of copyright: that's still defined by the CDPA. What the DEA does is introduce some new duties on both subscribers and ISPs to prevent breach of copyright using their networks: those who fail to satisfy those duties can have sanctions imposed by the DEA, but that's not "liability for copyright breach". The serious infringers list could help rightsholders to bring to court those *subscribers* whose connections have allegedly been used repeatedly to breach copyright, but it shouldn't affect the subsequent process of determining whether the subscriber standing in front of the court is actually responsible for those infringements under the CDPA.


> ian

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