×

Announcing: Slashdot Deals - Explore geek apps, games, gadgets and more. (what is this?)

Thank you!

We are sorry to see you leave - Beta is different and we value the time you took to try it out. Before you decide to go, please take a look at some value-adds for Beta and learn more about it. Thank you for reading Slashdot, and for making the site better!

No, You Can't Claim 'Negligence' In a Copyright Case

Soulskill posted more than 2 years ago | from the inspect-every-bit-manually dept.

The Courts 108

NewYorkCountryLawyer writes "In one of the myriad BitTorrent downloading cases against individuals, one plaintiff's law firm thought they'd be clever and insert a 'negligence' claim, saying that the defendant was negligent in failing to supervise his roommate's use of his WiFi access. Defendant moved to dismiss the negligence claim on the ground that it was preempted by the Copyright Act, and the Electronic Frontier Foundation filed an amicus curiae brief (PDF) agreeing with him. Judge Lewis A. Kaplan agreed, and dismissed the complaint, holding that the 'negligence' claim was preempted by the Copyright Act."

Sorry! There are no comments related to the filter you selected.

First Post (-1, Offtopic)

Anonymous Coward | more than 2 years ago | (#40607423)

The problem with first post is that there is no commentary yet.

well then u should have a frosty piss (-1)

Anonymous Coward | more than 2 years ago | (#40607493)

and wait for some comments

Negligence (5, Insightful)

jbuk (1581659) | more than 2 years ago | (#40607521)

Whilst I get that suing people for negligence, where, say, it caused some nuclear warheads to explode in their silos makes sense. However, negligence on the part of someone who is not doing the media's job for them (policing copyright)? Seriously?

Re:Negligence (1)

wierd_w (1375923) | more than 2 years ago | (#40607573)

Just wait. Instead of "neglicence" charges, it will be "failure to do due dilligence" or some other shit, which attempts to push the burden of enforcement through loaded charges.

Re:Negligence (0)

Anonymous Coward | more than 2 years ago | (#40608149)

Um, that's pretty much just the definition of negligence.

Re:Negligence (4, Insightful)

shentino (1139071) | more than 2 years ago | (#40609391)

For there to be negligence, there must first be a duty of care to even be breached in the first place.

Re:Negligence (1)

Mathinker (909784) | more than 2 years ago | (#40615781)

For there to be negligence, there must first be a duty of care to even be breached in the first place.

Not to forget that defining "duty of care" in US tort law falls under the jurisdiction of the State governments, which would diminish even further Joe Average's ability to figure out if he has significant liability under copyright law (this ability already being close to zero anyway except for really blatant infringing activity).

And if I am not mistaken, there is no way to be excused from paying damages for infringement, no matter how impossible it was for you to know that your actions could lead to such liability --- i.e., fulfilling this hypothetical "duty of care" is not a valid defense from monetary liability. (The amount of damages awarded, however, can be affected by how your actions are perceived).

Re:Negligence (1)

gstoddart (321705) | more than 2 years ago | (#40616655)

Yes, but I believe the GPs point was that they will likely try to establish that. Or at least, would if they could.

They've pretty much gotten it to be the ISPs job to do policing, so therefore if you have wi-fi, you will have the same duty.

Do you really think these guys don't want to foist a duty of care onto all of us? They want society to guarantee their profits, and pay for its policing. Sneaking in negligence gives them a shot at setting the precedent.

If they could somehow sneak that through, they'd be giddy with glee ... because in that case, the buck stops at the account holder, even if they didn't do anything. Summary judgements for everybody, trillions of dollars would flow -- and thereby somehow stimulate the economy they claim to form the basis of.

Re:Negligence (5, Interesting)

Oxford_Comma_Lover (1679530) | more than 2 years ago | (#40607847)

There's nothing intrinsically wrong with a negligence claim here, it would just be a hard sell. Negligence arises when someone has a duty, they breach the duty, and the breach is the cause of a forseeable harm to the plaintiff.

It doesn't have to involve nukes, and usually it doesn't.

So there would be two big hurdles for a plaintiff here: (1) a duty to keep one's internet connection secure and (2) the idea that there has actually been harm.

The judge bought an argument that the copyright law created a way for people to recover for the harm involved here, so the copyright statute overrules the ability to file a common-law negligence action. (Statutes trump common law). It's not a bad argument, although it's also not a surefire-win. (And as an on-point district court decision, the ruling is persuasive, but not binding on other courts.)

Disclaimer: IANAL, this isn't legal advice, laws vary by state, and you and I are both partially wrong.

Re:Negligence (1)

newcastlejon (1483695) | more than 2 years ago | (#40608215)

So there would be two big hurdles for a plaintiff here: (1) a duty to keep one's internet connection secure and (2) the idea that there has actually been harm.

(Emphasis mine)
Interesting, but would you agree that there's a substantive difference between an open hotspot and giving out the key to a secured one (whether or not one knows what's being downloaded)?

Re:Negligence (3, Insightful)

Em Adespoton (792954) | more than 2 years ago | (#40608319)

It's the difference between putting a photocopier on the street outside your house and putting a photocopier in a library. In one, you have no oversight and no idea of the intended use; in the other, you have some assumption as to intended use and have set guidelines, but still have no reasonable expectation of control over use.

Re:Negligence (1)

spazdor (902907) | more than 2 years ago | (#40609095)

This is really no different from the perceived responsibility of ISPs to police their users for copyright violations. The owner of the wifi hotspot is treated as the 'ISP' for anyone using it. It's a dumb argument at both levels.

Re:Negligence (3, Funny)

yotto (590067) | more than 2 years ago | (#40608389)

a negligence claim ... doesn't have to involve nukes, and usually it doesn't.

[citation needed]

/Actually, I don't need one for that. Seems pretty likely.
//In fact, I bet you could add "it usually doesn't involve nukes" after almost every statement humans have ever made and it'd be true.

Re:Negligence (1)

psiclops (1011105) | more than 2 years ago | (#40610155)

i had sex with your mom last night, it usually doesn't involve nukes.

Re:Negligence (0)

Anonymous Coward | more than 2 years ago | (#40610221)

Pics, or it didn't happen!

Re:Negligence (0)

Anonymous Coward | more than 2 years ago | (#40610545)

Thank you, this was appreciated.

Re:Negligence (1)

Chrisq (894406) | more than 2 years ago | (#40612017)

i had sex with your mom last night, it usually doesn't involve nukes.

But I probably have a negligence claim against the old folks home for letting you in.

missile (0)

Anonymous Coward | more than 2 years ago | (#40612027)

yeah, one of those would likely find their target better.

- His mom

P.S. ZING!

Re:Negligence (0)

Anonymous Coward | more than 2 years ago | (#40617173)

If you had sex with my ex lastnight I'd probably be grateful as it might stop her from being such a psycho.

Re:Negligence (4, Interesting)

Artifakt (700173) | more than 2 years ago | (#40608931)

I'm not a lawyer either, so we are two people going outside our respective professional competencies, but with that said, I suspect there IS something intrinisically wrong with a negligence claim here. The idea is that copyright law now implements statutory damages, and the statute says the standard for going from basic damages to more significant damages (the shift from $30,000 to $150,000 per incident), is "willfulness". Since negligence in most civil matters entalis a possible increase to the penalties as well, letting the plaintiff increase damages by the means spelled out in the statute and then increase them again by means of 'negligence', a cause outside the statute, is the problem.

        The defendant committed one tort, by one single action, and allowing a claim of negligence would be treating that one tort as two seperate violations subject to different laws for the same single action, two sets of penalties, and since there are some types of copyright violation subject to criminal charges, even possible double jeopardy. (if a prosecutor decided to bring criminal charges based on one statute where the other didn't justify them, that might be double jeopardy, i.m.h.o., even where they didn't bring charges for both statutes. Certainly it would be where two sets of criminal charges were brought. Double jeopardy doesn't exactly extend to civil suits (you can normally refile unless a case is dismissed with prejudice, but in practice, you'd better have something new to litigate) and anyway, once even part of copyright law started addressing criminal penalties, just where double jeoplardy doctrine protects is something that will probably have to go all the way to the Supreme court someday.). You really can't build a court case over someone simply being negligent - you charge them with negligence only as part of a specific tort (or a crime, like negligent homicide, where negligence is sometimes actually spelled out as part of the crime). Can you imagine accusing someone of negligent (blank)?

      The big content owners wanted copyright law extended more into criminal law, they wanted statutory penalties instead of having to show actual damages, and they got those things. It seems in this case someone wants the old laws back, but they would like to use pieces of both old and new law as they see fit to combine them. The judge was quite right to strike this down. It also shows some copyright claimants are simply not to be satisfied.

Re:Negligence (1)

Oxford_Comma_Lover (1679530) | more than 2 years ago | (#40609289)

No, generally courts won't allow double recovery--negligence would be a backup theory in case you didn't win the statutory damages, since you'd have to prove actual harm, which would be much smaller than statutory damages. But if you got them, they wouldn't let you also get negligence damages.

The negligence/willfulness distinction I also think doesn't work, though it sounds intuitively good. IIRC, civil copyright uses willfulness to increase damages, but actually has strict liability. You're right that the double jeopardy thing doesn't apply because it's a civil case.

People get accused of negligence all the time--getting in an accident, not maintaining a sidewalk, pretty much anything.

Re:Negligence (1)

Wakko Warner (324) | more than 2 years ago | (#40609145)

So there would be two big hurdles for a plaintiff here: (1) a duty to keep one's internet connection secure and (2) the idea that there has actually been harm.

#1 fails because there's no requirement, either written or implied, that a user's internet connection be secured.

#2 fails because common sense.

Re:Negligence (1)

jrumney (197329) | more than 2 years ago | (#40609899)

(1) a duty to keep one's internet connection secure

This wasn't about keeping the internet connection secure, it was about spying on the authorized use by the defendant's roommate so the defendant could detect and prevent illegal activities. This "duty" that the copyright industry thinks we all have is probably in conflict with numerous privacy and wiretapping laws.

Re:Negligence (1)

pixr99 (560799) | more than 2 years ago | (#40612743)

It doesn't have to involve nukes, and usually it doesn't.

But occasionally it does?

Re:Negligence (1)

Oxford_Comma_Lover (1679530) | more than 2 years ago | (#40614315)

*shrugs* Certainly there's nothing *preventing* it from involving nukes. It's just unlikely. :)

Re:Negligence (0)

anubi (640541) | more than 2 years ago | (#40607919)

This will cause much unrest and confusion to businesses such as Starbucks, hotels, airports, and others offering free anonymous wifi.

Isn't it amazing how much law our voted-for Congress passes to irritate our lives, while at the same time freely allowing international tax havens to operate.

Let someone use the same paradigm of a "data haven" enabling copyright violation instead of tax evasion and all hell breaks loose.

We really need to pay a lot more attention to who we elect to represent us and the power we grant his pen.

Re:Negligence (3, Interesting)

Anonymous Coward | more than 2 years ago | (#40607953)

The elements of the tort of negligence are:
1) a duty of care
2) breach of that duty
3) direct cause
4) harm

You argument is basically that the defendant did not owe a duty of care to the copyright holders, which would be a pretty easy argument to make.

Re:Negligence (4, Insightful)

lightknight (213164) | more than 2 years ago | (#40609005)

Called it. All those ISPs who failed to fight for their 'common carrier' status in courts, who bent over for the content companies, who agreed to implement all sorts of filtering and copyright notification schemes, who gave out their client's names, are, no doubt, about to see the other side of the equation. Once a precedent is set in court for 'negligence to prevent copyright infringement,' the copyright holders will take that precedent, and being a massive shakedown on ISPs; because you know, as well as I do, that ISPs (*cough* Verizon *cough* Comcast *cough*) have deep pockets, and there isn't a lawyer alive who would pass up an opportunity to sue them for a few million, either from the copyright owner's side ("Your client infringed, you could have stopped it; Give us your wallet!") or from the end-user's side ("He / she was just a naive teenager doing what his / her friends were doing; But {ISP} had the duty to prevent that, and failed! Money, money, money!").

Check my old posts, I mentioned a similar setup months ago. The ISPs walked into this one, with the smarter ones protecting their clients. If they're smart, they'll wise up, band together, and fight any / all cases of a similar nature in the future.

What about ISPs (0, Troll)

Anonymous Coward | more than 2 years ago | (#40607553)

Didn't they fail to monitor the misuse? What about Backbone providers? And what about not invading roommate's privacy? Total BS from the judges.

Re:What about ISPs (5, Informative)

Baloroth (2370816) | more than 2 years ago | (#40607835)

Ah, not BS, the judge dismissed the claim, which implies that in fact you can not sue someone for negligence simply for them using your hardware. Next time, might want to read the summary slightly more carefully.

Re:What about ISPs (0)

Anonymous Coward | more than 2 years ago | (#40608525)

+5 this

Re:What about ISPs (0)

Anonymous Coward | more than 2 years ago | (#40608775)

Well, firstly, (s)he would have to learn to read.

Re:What about ISPs (1)

Theaetetus (590071) | more than 2 years ago | (#40617611)

Ah, not BS, the judge dismissed the claim, which implies that in fact you can not sue someone for negligence simply for them using your hardware. Next time, might want to read the summary slightly more carefully.

Unfortunately, the summary's incorrect. Next time, the summary author might want to read the decision slightly more carefully. Specifically, the judge dismissed the negligence claims because the complaint was actually alleging "knowing and active" contributory infringement, not negligence at all (see footnote 17), and that the legal right involved - protection from contributory infringement - was in the copyright act and thus preempts state claims.

And, most importantly to what you and the GP were discussing, the defendant is still in the suit. Although the negligence claim against the defendant was (properly) dropped, there is also a contributory infringement claim against him.

Why this is important, however, is that the elements the plaintiff needs to show for contributory infringement are different than the ones they needed to show for negligence. Dropping the negligence claim will require them to prove that "knowing and active" bit that they wouldn't have had to do for negligence.

Re:What about ISPs (1)

MobileTatsu-NJG (946591) | more than 2 years ago | (#40611029)

What I like is the implication that I somehow know what content they're licensed to view so I can okay them torrenting it from my wifi.

Good for you (1)

Anonymous Coward | more than 2 years ago | (#40607577)

In Germany, we have something called "Störerhaftung" (disrupter liability), which means liability to prevent infringement (but not liability for the infringement itself). Needless to say, intentionally open wireless hotspots which don't require user registration are a rarity in Germany, much to the delight of mobile phone network operators.

Sounds like claiming "negligence" was a stretch (0)

Anonymous Coward | more than 2 years ago | (#40607605)

If I read it correctly (OK that's plenty optimistic), it sounds like the defendant knew that his roommate was using his (defendant's) internet connection to pirate material. It wasn't a case where, let's say a parent is held liable for works downloaded by a teenage son from the upstairs bedroom.

So the title of this article may be too broad.

Re:Sounds like claiming "negligence" was a stretch (1)

anubi (640541) | more than 2 years ago | (#40607971)

let's say a parent is held liable for works downloaded by a teenage son from the upstairs bedroom.

It is sure getting dangerous to be a parent these days.

Re:Sounds like claiming "negligence" was a stretch (1)

Em Adespoton (792954) | more than 2 years ago | (#40608359)

A teenage son is the ward of his parent -- so the parent is de-facto liable.

With roommates, there's no wardship, so intent must be proven (or disproven for civil suits).

One of the GOOD things to come out of criminalizing copyright is that the burden is now solidly on the accuser to provide proof instead of on the defendant to prove innocence.

Re:Sounds like claiming "negligence" was a stretch (1)

oldmac31310 (1845668) | more than 2 years ago | (#40617263)

'downloaded by a teenage son from the upstairs bedroom' - via the stairs perhaps?

So am I understanding this right? (0)

rastoboy29 (807168) | more than 2 years ago | (#40607607)

So all I need to do now if I get sued by a copyright holder is claim that my wireless could be used by other people, and therefore you can't use the IP address to identify me?

I mean, I know that's a fact, but does this set any precedent in the law?

Sure would be nice if the law had more to do with facts....

Re:So am I understanding this right? (0)

Anonymous Coward | more than 2 years ago | (#40607631)

I think this only applies to the additional negligence clause that was in the lawsuit.

Re:So am I understanding this right? (1)

0racle (667029) | more than 2 years ago | (#40607665)

You would probably have to prove it was possible for one. Here it was pretty obvious that the roommate was a valid user of the provided WiFi.

You have the logs to back up your claim, right?

Re:So am I understanding this right? (4, Insightful)

Baloroth (2370816) | more than 2 years ago | (#40607863)

So all I need to do now if I get sued by a copyright holder is claim that my wireless could be used by other people, and therefore you can't use the IP address to identify me? I mean, I know that's a fact, but does this set any precedent in the law? Sure would be nice if the law had more to do with facts....

Actually you can. It's a pretty major issue law enforcement (such as the FBI) are becoming aware of. Of course, they will probably issue a warrant to examine your PC, and if it has been wiped recently you probably won't be winning the case (assuming it is a civil case, they don't need to prove beyond a doubt you did it, just that you probably did).

Re:So am I understanding this right? (0)

Maxo-Texas (864189) | more than 2 years ago | (#40608097)

So by this logic, if they accuse you of murder and there is no body and you cleaned your house recently, then you should be convicted?

That's almost as ludicrous as the "Ip address is the same as fingerprint" argument.

Re:So am I understanding this right? (1)

Anonymous Coward | more than 2 years ago | (#40608163)

That's the difference between a civil and criminal case, yes.

Re:So am I understanding this right? (2)

pipedwho (1174327) | more than 2 years ago | (#40609603)

It seems the concept of 'preponderance of the evidence' has crept to a standard so low that it's difficult to continue seeing it as part of a justice system.

Re:So am I understanding this right? (1)

drinkypoo (153816) | more than 2 years ago | (#40608243)

So by this logic, if they accuse you of murder and there is no body and you cleaned your house recently, then you should be convicted?

Set up a computer housekeeping schedule, document it (at least by blogging about it) and stick to it... If you're worried about a gestapo mp3 raid, you need to use encryption of your media volume anyway.

Re:So am I understanding this right? (0)

Anonymous Coward | more than 2 years ago | (#40609531)

It's ridiculous that, even without proof that there was anything there, that it would allegedly be assumed that something was there (causing you to lose the case). I certainly hope that's not how it would play out, because that's ridiculous.

If they can't prove anything, then they should always lose. They shouldn't be able to control when I can and can't clean up.

Re:So am I understanding this right? (1)

drinkypoo (153816) | more than 2 years ago | (#40610063)

That's right, they shouldn't, but we live in the real world where he who has the gold typically wins. It doesn't always play out that way, but it's the way to bet.

Re:So am I understanding this right? (1)

Maxo-Texas (864189) | more than 2 years ago | (#40610533)

Amazing that someone would mod down a comment this innocuous.

"So by this logic, if they accuse you of murder and there is no body and you cleaned your house recently, then you should be convicted?

That's almost as ludicrous as the "Ip address is the same as fingerprint" argument."

Re:So am I understanding this right? (0)

Anonymous Coward | more than 2 years ago | (#40612553)

You realize that this is the case for any ... cases dealt with by jury?

You just have to convince 12 people he/she did/didn't do it. Whether or not a piece of evidence fits is completely irrelevant.

Re:So am I understanding this right? (1)

Tom (822) | more than 2 years ago | (#40608327)

Of course, if it's a civil case, then the FBI would not be involved.

Re:So am I understanding this right? (1)

nurb432 (527695) | more than 2 years ago | (#40608377)

if it has been wiped recently

Ah the wonders of hidden encrypted partitions and VM's...

Re:So am I understanding this right? (0)

Anonymous Coward | more than 2 years ago | (#40609199)

>Ah the wonders of hidden encrypted partitions and VM's...

Ah, the wonders of morons who think that forensics experts don't know about those...

Re:So am I understanding this right? (0)

Anonymous Coward | more than 2 years ago | (#40612127)

Ah, the wonders of morons who believe forensics experts can get something from nothing...

You put the VM in the hidden encrypted partition which will keep most of the evidence of any illicit activity contained, then the only evidence you have to avoid leaving is actually mounting the encrypted partition and running the VM. Admittedly this isn't quite as trivial as it sounds since a modern OS may record traces of these things without you realising. But you could use a live CD/USB to do these things without leaving traces.

Re:So am I understanding this right? (1)

Anonymous Coward | more than 2 years ago | (#40608803)

Bullshit. Only the Fucking Bastards of Idiocy can make up such bullshit... because they can get away with it.

In Germany, the judge tells you to GTFO and pay the defendant’s court costs, if you come up with only IP addresses.
No, you don't get a search warrant either.
And we don't have warrantless terrorism here, so the cops can't simply break and enter, terrorize you and steal your equipment.

Besides: Since when does a Excel sheet represent tamper-proof evidence of something happening? How do they plan on proving that they not just opened Excel, entered some people's IP addresses they found from running a file sharing program (becoming criminals by their own retarded definitions) and wrote popular movies/songs next to them, to then go fishing via racketeering cases? (Which is exactly how it happens in reality.)

Don't defend organized crime. Neither the content Mafia, nor the FBI. If you defend the enemies of the people... you *become* an enemy of the people.

Re:So am I understanding this right? (1)

AK Marc (707885) | more than 2 years ago | (#40608507)

So all I need to do now if I get sued by a copyright holder is claim that my wireless could be used by other people, and therefore you can't use the IP address to identify me?

Even if you didn't share wireless with anyone, does the IP address identify you? At best, it may identify a specific device, but does that identify you?

Sure would be nice if the law had more to do with facts....

They are written by politicians, facts aren't relevant.

What's next? (1)

moniker127 (1290002) | more than 2 years ago | (#40607627)

1. Play your copywritten music in public. 2. When people in public use phones, music is being illegally copied and redistributed. 3. Sue people with phones. 4. There is no ??? its just profit. And it is probably the next bullshit scheme they will try, too.

Re:What's next? (0)

Anonymous Coward | more than 2 years ago | (#40607671)

I have ears and memory, therefore I am copying it by paying attention. Paying attention to music is piracy. You may only buy the CD and not listen to it.

Re:What's next? (1)

Em Adespoton (792954) | more than 2 years ago | (#40608401)

You fail at step 1: public performance doesn't fall under the same rules as private performance.

Now, if the recipient of the phone call recorded the call, there'd be infringement. But first you'd have to figure out who they were.

Re:What's next? (1)

moniker127 (1290002) | more than 2 years ago | (#40609813)

Just because its the internet doesn't mean you need to troll- get a job.

Re:What's next? (0)

Anonymous Coward | more than 2 years ago | (#40608793)

Just FYI, the word is "copyrighted" not "copywritten".

Re:What's next? (1)

psiclops (1011105) | more than 2 years ago | (#40610503)

maybe he means music played by musicians who were reading a copy of the sheet music.

Re:What's next? (1)

Asic Eng (193332) | more than 2 years ago | (#40608881)

Well in this case it's not the RIAA driving the lawsuit, but a producer of gay porn. This [ajscloset.com] (definitely NSFW) is the title in question. Chances of a public performance are probably low.

Re:What's next? (1)

drkstr1 (2072368) | more than 2 years ago | (#40608983)

Silly person, didn't you know it's illegal to play music in public? ...unless you've paid your vig to the ASCAP of course.

Re:What's next? (1)

Errol backfiring (1280012) | more than 2 years ago | (#40611937)

Oh, and don't forget to sue the people who dare to hum or whistle your melody into bankruptcy.

This ruling is in defense of the individual (1)

wrencherd (865833) | more than 2 years ago | (#40607635)

This seems to be a ruling barring a complaining copyright holder from piling a negligence claim on top of any statutory damages.

So, if the kid here could show that he didn't do the downloading, but his roommate did he could still be held responsible by negligence.

With this ruling, the plaintiff is limited to statutory damages against the actual infringer, be that the defendant or his roommate.

Re:This ruling is in defense of the individual (4, Interesting)

weiserfireman (917228) | more than 2 years ago | (#40608007)

It would seem to say that the owner of the WiFi, doesn't have any fiduciary responsibility to Copyright Owners to prevent Copyright Infringement by others.

This would be the correct decision. Copyright law places the full responsibility for Copyright Enforcement on the Copyright Owners.

RIIAA and MPAA were happy with this until Internet File Sharing came along and their enforcement costs went up. They are looking for one Judge to slip and give them precedence to use in other courts. They will keep trying this tactic.

In Germany, there is 'negligence' (4, Interesting)

saibot834 (1061528) | more than 2 years ago | (#40607645)

In Germany there is an odd situation right now, where ISPs can't be held accountable for what their users do, while private individuals or small hot spot operators are (somewhat) liable for someone else using their network for illegal activities. This basically means you can't open up your WiFi to visitors and neighbours without spying on their Internet usage.

(On the other hand, in contrast to the US, if you get caught, you don't have to pay $1.5 million (or even $54,000 [wikipedia.org] ) for copyright infringement.)

Re:In Germany, there is 'negligence' (1)

anubi (640541) | more than 2 years ago | (#40608117)

This basically means you can't open up your WiFi to visitors and neighbours without spying on their Internet usage.

I wonder how kindly businessmen trying to use the internet at the airport, hotel, or coffee shop for highly confidential business communications will take to knowingly being snooped.

I have set up several wireless hotspots for local businesses. At no time did I ever even try to snoop or log connections - its way too much trouble, zero profit, and 100% chance of irritating the customer to do so.

Re:In Germany, there is 'negligence' (2)

arose (644256) | more than 2 years ago | (#40608621)

They shouldn't take it kindly at all, it's gross negligence on the part of their IT staff to not set up secure communications channels. It's not the fault of the airports, hotels or coffee shops. If you are connecting to essentially random open hotspots that might, or might not, be provided by whatever establishment and not encrypting your connections you are at high risk, Germany or elsewhere.

Re:In Germany, there is 'negligence' (1)

djlowe (41723) | more than 2 years ago | (#40608755)

I wonder how kindly businessmen trying to use the internet at the airport, hotel, or coffee shop for highly confidential business communications will take to knowingly being snooped.

Well, I'd hope that those businessmen are using VPN connections for those highly confidential business communications.

At my company, while we offer email access to our users' Exchange mailboxes via OWA and Outlook Anywhere, both are encrypted.

Access to internal company servers where work product is stored can only be accomplished from the outside world via our VPN, and so snooping at Internet cafes, airports, hotels, etc. wouldn't really be an issue.

I have set up several wireless hotspots for local businesses. At no time did I ever even try to snoop or log connections - it's way too much trouble, zero profit, and 100% chance of irritating the customer to do so.

Still, I'd set up a disclaimer page of some kind, after vetting it with the business' legal staff. Something along the lines of "This free service is provided with the understanding that it will not and must not be used for illegal purposes. Use of this service constitutes acceptance of these terms".

And I'm certainly no lawyer, but it seems that such would be wise, and you, as the vendor/contractor should (must?) make them aware of these issues when you do this on their behalf. Covering your own ass is a good idea, too, so that you're protected as well, and you would be wise to consult your own lawyer about this.

Finally, of course, the obligatory disclaimer: I'm not a lawyer, and this is not legal advice, please consult your own lawyer as you see fit in this matter for competent legal advice, and for all other issues of legal import.

Regards,

dj

Re:In Germany, there is 'negligence' (1)

nedlohs (1335013) | more than 2 years ago | (#40613853)

If you aren't an idiot you would assume you are being snooped on.

Hence encryption is enabled on VPNs, ssh is used instead of telnet, https instead of http for anything that matters, SSL/TLS is used for imap and smtp, etc, etc.

Re:In Germany, there is 'negligence' (1)

Anonymous Coward | more than 2 years ago | (#40608459)

That is interesting. That would suggest that Tor node operators in Germany are liabilities. I have to wonder how they define ISP. To me an ISP is someone who provides Internet access to others. The size is retentive to that so a "hotspot operator" is an ISP, a person sharing his Internet connection is an ISP, etc. The only exception might be if you deny access to the Internet. Only then would you not be an ISP and the reason for this is because the Internet in any kind of restricted fashion is not the Internet. While it might have access to parts of it that isn't the same thing as having access to the Internet. In many countries users don't truly have access to the Internet. This includes most Canadians (there is a voluntarily implemented system of censorship which something like 90% of operators subscribe to in Canada), Europeans, Middle Easterners, and Chinese. One of the few places I'm aware of that don't have some sort of censorship are US ISPs. And even here this isn't entirely true. At least Comcast has censored the Internet through disconnecting Bittorrent. Even shaping bandwidth to a significant enough degree is censorship (where it becomes impractical to access content- something most educational institutions in the United States have) and therefore can be said to be false advertising should it be advertised as an ISP or providing users access to the Internet.

Exactly. This is well-known. (1)

Anonymous Coward | more than 2 years ago | (#40608731)

In Germany, in a case of basic common sense, judges repeatedly stated, that you can’t guarantee a link between IP address and person, and hence a IP address is pretty much meaningless in court. Which is why here, you can simply throw their racketeering scaremongering letters to the trash, and never hear from them again. In court they wouldn't stand a chance in any case. Not only because of this.

Re:In Germany, there is 'negligence' (0)

Anonymous Coward | more than 2 years ago | (#40611583)

The difference between $1.5 million and $54,000 really isn't that much anyway. Either number will get the average person ruined.

Why odd? (1)

phorm (591458) | more than 2 years ago | (#40615789)

I don't really see why it's odd. For the law, it's about identifying the user.

An ISP has a record to identify a customer. Depending on how strictly they manage they network, they should be able to say with some confidence that
"the account that accessed X belonged to Bob Smith of 123 Summer St" (notice I do say "account belonging to Bob", and not Bob himself)

Whereas Bob, who has open wifi, generally cannot say with confidence that
"the access from my account at 12:30pm on July 9 was done by my neighbour Sam"

Unless Bob has some strong measures in place to define access: strong encryption, VPN, a well-configured login portal, etc, then the buck has still stopped at his network.

Don't do a search for the movie (1)

million_monkeys (2480792) | more than 2 years ago | (#40608013)

The movie in question is "Corbin Fisher's Down on the Farm". Don't do a google search - it's an adult film. I'm told the adult film industry files these suits expecting people to settle rather than be publicly embarrassed by what they were downloading.

Huh? (1)

GSloop (165220) | more than 2 years ago | (#40608047)

You can't claim negligence if you don't have the copyright for the works you're suing about...

At least that seems to be the problem here...

In short, the referenced documents on Beckerman's page, indicate that ScumSuckingRodent (TM) (C) plaintiff sued for infringement of "Some stupid pron title" but the registered title was "Some Horny gay guys - some stupid pron title"

So, the infringement suit was dismissed.

As a result, you can't claim negligence on an infringement that didn't occur.

Did I miss something more nuanced - because it seems Beckerman is implying there's something more fundamental here?

-Greg

Re:Huh? (2)

bobbied (2522392) | more than 2 years ago | (#40608541)

No, this was not nuanced... There where two arguments being made. 1. You can't sue me because you don't have a copyright registered on that title and 2. You can't sue me for negligence because I didn't stop my roommate from doing it. The judge agreed with the person who was providing the internet connection on both arguments.

I'm betting that the copyright registration will be corrected and the roommate will be then held accountable, if this hasn't happened already.

I had my wireless router hacked (0)

Anonymous Coward | more than 2 years ago | (#40608065)

I had my wireless router hacked once and it didn't take long before I noticed it because a password was added to it. To make a long story short, I had to find another open wireless signal. By now you have probably realized that "my router" was actually someone else's. But no one needs to know.

Re:I had my wireless router hacked (4, Interesting)

Quirkz (1206400) | more than 2 years ago | (#40608469)

I received a tech support question from someone whose "wireless stopped working." I tried troubleshooting, and got blank looks when I started talking about a wireless router. Eventually I backed up and asked how they connected, discovered "I just look for wireless and pick one but now they all have passwords," and realized they'd just been using their neighbors' services without even knowing how any of it worked. After that it was easy enough to explain how to get a wireless router and solve the problem, but I chuckled to myself a bit as the story unfolded.

Re:I had my wireless router hacked (0)

Anonymous Coward | more than 2 years ago | (#40608849)

You left out an important detail: Were they paying an ISP for service the whole time?

Re:I had my wireless router hacked (1)

Quirkz (1206400) | more than 2 years ago | (#40615171)

Yep, they were paying for wired internet, just hadn't realized they needed to do anything to make it wireless.

Re:I had my wireless router hacked (1)

GrumblyStuff (870046) | more than 2 years ago | (#40609443)

They were STEALING bandwidth and you didn't report them?!

Re:I had my wireless router hacked (1)

humanrev (2606607) | more than 2 years ago | (#40609865)

I doubt the ISP had a legal requirement to notify anyone about it (unlike an admittance of child porn for example).

Re:I had my wireless router hacked (1)

Lehk228 (705449) | more than 2 years ago | (#40611279)

sounds like they were buying their own bandwidth but just too dumb to figure out how to use it.

Re:I had my wireless router hacked (1)

RatherBeAnonymous (1812866) | more than 2 years ago | (#40611369)

I recently installed a wireless router in my mother-in-law's house. For years she was using a neighbor's unsecured wireless signal. The kicker is, she didn't know she was using a neighbor's Internet connection. When she bought the home it was advertised as a "wireless capable" smart home. Her desktop computer was connected directly to a cable modem with Internet service she was paying for, and it is likely that her neighbor was on the same cable Internet system, so it would be a stretch to say she was getting anything for free, not even convenience. I found the wireless router in a box of electronics in the garage. It had come from her husband's practice and had been in the house about as long as she had lived there.

Told ya so (0)

nurb432 (527695) | more than 2 years ago | (#40608357)

I knew that this sort of ruling would eventually happen.

Doesn't bode well for people who have their wifi cracked ..

Re:Told ya so (0)

Anonymous Coward | more than 2 years ago | (#40608653)

Did you even read the summary? The negligence claim was DISMISSED.

Durrrrr.

What downloaded first, the license or the file? (0)

Anonymous Coward | more than 2 years ago | (#40608431)

How do you read a copyright license before you download the file?

The more interesting aspect is this: (2)

kilodelta (843627) | more than 2 years ago | (#40608609)

I know that Verizon and most carriers, when the provision new net service give the customer a WiFi access point/router that only uses WEP encryption. I also know that with Backtrack V, you can pretty much crack WEP easily.

With that in mind - I would simply bring up the fact that the default WEP is the real point of negligence. Which means it's either the carrier (E.g. Verizon) or it's the manufacturer.

WEP? Wrong. (0)

Anonymous Coward | more than 2 years ago | (#40612071)

That was the case about 4-5 years ago, but since then the standard has moved to WPA/WPA2.

I remember those days, every AT&T 2WIRE used WEP, and I'm sure that although they were likely
the most prominent, they weren't alone.

The sad thing is... (2)

BlueTemplar (992862) | more than 2 years ago | (#40608763)

The sad thing is that "negligence" is exactly what the French 3-strikes HADOPI law is based on (Article 6 11): http://www.laquadrature.net/wiki/HADOPI_translation [laquadrature.net] Or maybe it's not so sad, because if that's the only way the MAFIAA found to get this law passed, they must indeed have been running out of options...

Re:The sad thing is... (1)

manu0601 (2221348) | more than 2 years ago | (#40610311)

Perhaps it is just that entertainment industry have an agenda to promote anti-negligence laws worldwide, and they missed the point that they do not have it (yet) in the US

Why does the buck stop with the account holder? (1)

Chewbacon (797801) | more than 2 years ago | (#40611653)

I'm a little confused. If the consumer is responsible for what his room mate, kid, girlfriend, etc. does on his connection, why isn't the ISP responsible for what the consumer does? Yeah, yeah, I know "because the law says so" but what batshit logic is that? So this means if I want to pirate some software, movies, or music I can jump onto my neighbor's wifi and download it. Wow, do I feel dumb! Here I was thinking the law is supposed the punish the guy whodunit.

Summary's not quite right... (1)

Theaetetus (590071) | more than 2 years ago | (#40613957)

In one of the myriad BitTorrent downloading cases against individuals, one plaintiff's law firm thought they'd be clever and insert a 'negligence' claim, saying that the defendant was negligent in failing to supervise his roommate's use of his WiFi access.

That's not exactly right. The firm put in the negligence claim because (for some unknown reason), they thought that the copyright act only provided for liability of a direct infringer (the roommate), and not anyone else who contributed to the infringement (the defendant WiFi owner):

Liberty nevertheless argues that its negligence claim asserted here is not preempted because, as the Court understands the argument, the negligence claim rests on infringement by others whereas the Copyright Act provides a remedy only against a direct infringer.

That's incorrect, as the judge notes:

The right that Liberty seeks to vindicate by its state law negligence claim – the imposition of liability on one who knowingly contributes to a direct infringement by another – already is protected by the Copyright Act under the doctrine of contributory infringement.

Furthermore, they're not actually alleging negligence at all - from footnote 17:

It bears emphasis that, despite the “negligence” label, this complaint alleges that Tabora knowingly facilitated and actively participated in Whetstone’s alleged infringement. This case does not involve a concededly ignorant but allegedly careless defendant.

Basically, the firm wanted to go after both roommates and, due to an inept misunderstanding of copyright, alleged (i) direct infringement by the roommate, and (ii) "knowing and active" negligence by the WiFi owner. The judge properly said, "hey, dolts, number 2 isn't negligence, it's contributory infringement, so the state law negligence claims are wrong and preempted anyway."

The defendant isn't off scot free... The plaintiffs have a contributory infringement complaint that still names him.

Standards for contributory infringement (1)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#40615851)

The standards for contributory infringement were established in MGM v Grokster. To be secondarily liable the defendant must have encouraged or induced the infringement. Mere 'negligence' would not suffice.

Good thing no one's talking about negligence then (1)

Theaetetus (590071) | more than 2 years ago | (#40615977)

The standards for contributory infringement were established in MGM v Grokster. To be secondarily liable the defendant must have encouraged or induced the infringement. Mere 'negligence' would not suffice.

Absolutely right, but again, the plaintiff wasn't claiming "mere 'negligence'," but "encourage[ment] or induce[ment of] the infringement." As I posted, from footnote 17 in the decision (emphasis added):

It bears emphasis that, despite the “negligence” label, this complaint alleges that Tabora knowingly facilitated and actively participated in Whetstone’s alleged infringement. This case does not involve a concededly ignorant but allegedly careless defendant.

And, as the judge noted:

The right that Liberty seeks to vindicate... is protected by the Copyright Act under the doctrine of contributory infringement.

So, as noted, the summary isn't correct, because the plaintiff wasn't arguing what you claimed they were arguing.

Who are you? (1)

NewYorkCountryLawyer (912032) | more than 2 years ago | (#40618029)

If you don't mind my asking, what do you do for a living, and for whom?

It seems to me that every time I post something on slashdot, you're there trying to belittle it.

You know who I am. Who are you? Since you have an agenda, you should disclose what it is.
Load More Comments
Slashdot Login

Need an Account?

Forgot your password?