Unsecured wifi might be contributory negligence

Igor Mozolevsky mozolevsky at gmail.com
Tue Feb 21 07:02:17 GMT 2012

On 20 February 2012 15:43, Roland Perry <lists at internetpolicyagency.com> wrote:
>  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.

Firstly, that only goes to support the point that I was making---your
liability is limited to yourself and a clearly identifiable *small*
class of people, not the world of home owners (or in our case Internet
users) at large. Secondly, I would presume, the earlier inhabitants
still have the "it wasn't my 'handiwork' that was defective"
defence---the thing you are suggesting is eliminated for households
wrt "unsecured" wifi routers.

>> 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.

I don't see what point you are trying to make: are you saying that
public wifi providers ought to be afforded greater protection at law
than the households, or are you saying that the households ought to be
treated as involuntary intermediaries? The latter seems a more
rational approach...

>>>> 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?

Absolutely, but not just those who "need" to do so, but innocent, yet
not sufficiently technically competent to do something about it, as
well. Let me give you a practical illustration here: I have put your
suggestion to someone whom I consider to be "a reasonable person" and
initially that person was entirely agreeing with your suggestion, but
only up to the point when I asked whether that person considered
themselves to be sufficiently competent to avoid liability if such law
was passed.

>> Proportionate to what---the alleged infringement, householder's
>> income, some other yardstick?
> I don't think anyone has decided yet.

I can't take this any further than this then...

>> 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.

Let's think about the situation in these scenarios. With spammers, you
would have some affiliation between the spammer and the contents of
the messages, some form of payments, and I would hazard a guess
templates of those messages would be stored somewhere "handy". In the
case of harassment, there is some form of relationship between the
harasser and the harassee, or in case of a stalker, one would expect
to find some other evidence (e. g. a huge collection of photos).
Dealing with a large scale copyright infringement (sufficiently large
to bring that within the ambit of a criminal offence) you would have
other corroborating evidence and, more significantly, payments made to
the person distributing the works, which is what seems to attract the
FBI attention.

The problem seems to arise (and this appears to be the case in the
original article that you have pointed to, or at least that is the
inference I am making from abstracts of the court filing quoted
therein) when the IP rights holders (or their agents) use torrent
tracking to identify those who they think are "sharing" and have
diddly-squat by way of corroborative evidence. In the first MediaCAT
judgment [1], there was an explicit point being made by the judge
about the fact that mere "IP address" evidence is quite simply
untested and the judge did not appear to want to test it there and
then. What you seem to be suggesting is that such evidence (even
though produced by an interested party without any corroboration) is
sufficient for civil/criminal liability. Are you seriously saying that
you are happy with that situation?

Naturally, there would be no problem is one were to try to download
the copyrighted material from the sharer and subsequently obtained a
search order and discovered the same content on the defendant's

1. http://www.bailii.org/ew/cases/EWPCC/2011/6.html

Igor M.

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