by Mike Masnick
Mon, Oct 3rd 2011 11:28am
from the a-well-thought-out-shakedown dept
There are various interesting things in the article worth commenting on. First is the smaller settlements/making it up in volume technique. While its initial lawsuits against coffee shops and restaurants did focus on the central corporations, with the hotels, Innovatio appears to be focusing on individual franchisees. Yes, the small businesses who own individual hotels and probably have no idea how to deal with a patent infringement lawsuit -- all because they dared to offer WiFi somewhere in their hotels. To make it "easy" of course, Innovatio's lawyers will let them settle for between $2,300 and $5,000. In almost every case, that's going to be cheaper than hiring a lawyer to just get started dealing with this -- which I'm sure is exactly what Innovatio intends.
The company is represented by the infamous law firm of Niro, Haller & Niro, which is the firm that originally inspired the term "patent troll." The lawyer representing the company, Matthew McAndrews, seems to imply that the company believes the patents cover everyone who has a home WiFi setup, but they don't plan to go after such folks right now, for "strategic" reasons:
"Innovatio has made a strategic and business judgment at this stage that it doesn’t intend to pursue [lawsuits on the basis of] residential use of WiFi," McAndrews said during a phone conversation last week.And while that certainly could change, you may be relieved (or probably not) to learn that McAndrews does not "perceive" such a "strategic" decision will change. However, later in the article, he seems to indicate otherwise:
Ultimately, he said, Innovatio’s "plan is to license this portfolio to the fullest extent possible. That would include anyone who's wireless networking."And then there's this:
"We want you to continue to use this technology, we just want our client to get his due share,” McAndrews said. “This is not a seat-of-the-pants, fly-by-night shakedown."I guess he means this is a well-planned, well-financed shakedown that's going to stick around for a while. Lovely.
At least there is some firepower arguing against Innovatio. After its first round of lawsuits, Motorola and Cisco went to court, asking for a declaratory judgment that its WiFi products do not infringe... and that Innovatio's patents are invalid. Hopefully that comes to pass or WiFi may get a hell of a lot more expensive.
by Mike Masnick
Mon, Sep 26th 2011 2:26am
from the um,-but-it's-legal dept
Either way, it raises lots of questions. Having an open WiFi network is not against the law, so should the police really be going around telling people to lock up their WiFi? It's also not at all clear how they're figuring out who actually owns the open WiFi networks. Rumion was also concerned about what the police might do with the data they collect, though I don't think that should be an issue -- that data is public. Still, it does seem like a questionable effort against something that remains perfectly legal.
by Mike Masnick
Fri, Aug 19th 2011 11:48am
from the no-freaking-way dept
And so we're extremely worried about this particular settlement, which you can see embedded below. The full payout by the Doe is $10,401, but the breakdown is as follows:
- $200 for innocent infringement
- $200 for contributory infringement
- $1 to pay off the conspiracy charge... while not admitting to any conspiracy (another theory presented is that in using BitTorrent, you enter into a "conspiracy" -- a claim we won't debate this time around, but may revisit another time)
- $10,000 for the negligence of having an open router
As I've mentioned in the past, I'm also surprised by the fact that the lawyer representing Corbin Fisher/Liberty Media in this case is Marc Randazza, who has done some fantastic work in the past and present to defend free speech rights -- including taking on a variety of defendants against copyright troll Righthaven, despite its efforts bearing some striking similarities to what Corbin Fisher is doing here. In fact, Randazza has been at the forefront of many of the recent victories against Righthaven, and the various attempts to force Righthaven to pay up for its abuse of the court system to shake people down.
I like and respect Randazza and have sent a few interesting cases his way when people I know have needed legal help concerning attacks on their free speech rights. He's also helped us at times when we've been threatened with bogus lawsuits. But I still have trouble understanding his position on these Corbin Fisher cases, which strike me as being the same, or in some cases, worse than some of these other efforts. Given that, I emailed Marc, telling him I was going to write a post about this settlement and the fact that I think it's a horrible and dangerous result, that will be used to harass people who have open WiFi networks for perfectly legitimate reasons, and asking if he had any comment. He wrote back a lengthy response, which he also sent to TorrentFreak, who posted it as an article.
This is one time where I think Randazza is 100% wrong, and is actually doing significant harm to causes he claims to support. Thankfully, the folks at the EFF (who list Randazza as a lawyer to talk to if you're hit up for money by copyright trolls) have stepped up to debunk the legal basis of Randazza's argument, which is effectively based on a famous case on negligence involving tugboat radios. The EFF points out that such negligence claims for a service provider are clearly barred by Section 230:
Perhaps hoping to avoid this limitation, the essay suggests that operators can be held liable under a general tort theory of negligence (meaning, it's not a copyright claim, just a general injury claim). But that approach immediately crashes against another legal wall. Section 230 of the Communications Decency Act offers broad immunity from tort claims (including negligence) to providers of “interactive computer services” for claims arising from the activities of their users. The statute’s broad definition of interactive computer service includes “specifically a service or system that provides access to the Internet.” (emphasis added).What I find even more troubling about Randazza's argument and especially this settlement is how it will be used (whether by Randazza or others) to falsely imply that having an open WiFi network -- which is perfectly legal -- is not a defense when sued. In fact, the really nefarious part of this is that not only does it imply you can't use that defense, it implies additional liability for mentioning this very legal use of WiFi as a part of your defense. Anything that effectively takes away a legal defense against a questionable legal claim, and implies that you may actually be hurting yourself just for bringing it up, is immensely troubling.
Randazza claims that negligence claims are really a way of saying "you should have seen this coming." But that's ridiculous. It implies that anyone leaving open WiFi must assume that people will use that open WiFi for illegal activity. That's a huge leap. There are security reasons as to why you might want to secure your own WiFi... but there are also alternative ways to secure your home surfing and home network, while still leaving an open WiFi network. Randazza's statements suggest that's not possible and that anyone opening up their home WiFi should know that it's likely to be used for illegal activity.
Like the EFF, I'm also troubled by the way that Randazza seems to ignore the basic concepts of properly applying liability. We have safe harbors in the DMCA and the CDA for a very specific reason: to have people properly apply liability to the actual actors, and not the third party service providers and intermediaries. We have a long tradition in US law, even outside of those explicit safe harbors, that liability should be applied to the actual actors, rather than 3rd party service providers. Randazza talks about how leaving your WiFi open leaves you open to having your house raided by police if someone uses your router to transmit child porn. But just because the police might raid your house improperly, that does not suddenly make it negligent to have an open router. Instead, it should raise questions about the investigation and the decision to raid the house.
In fact, we keep seeing that even when someone uses open WiFi to commit a crime, while law enforcement may investigate, they're still looking for the person who actually did the crime. The fact that Randazza ignores this and basically says that because you might get raided, it's negligence, is really troubling.
Furthermore, Randazza stretches liability to ridiculous levels with some guilt by association:
The kind of person who would steal your car is probably the kind of person who would commit other crimes (or just do something stupid). So if you leave your keys in your car, and someone takes it and drives it into someone’s fence, you’re at least partially responsible for the damage. If the car thief runs off, who should pay for the damage? The fence owner or you? It would seem that between those two parties, you would be more responsible than the fence owner. You wouldn’t say that the fence owner should have built a better fence, would you?But that's incredibly misleading (beyond the false use of "stealing"). First of all, those who have open WiFi should not have "seen it coming," because there are lots of perfectly legitimate reasons to offer and use open WiFi. Nothing about doing so should make you liable for what people do on the network, and that's exactly what the law says. Leaving your network open is not "inviting theft." That's simply misleading.
That’s what negligence is: It is the law saying “You really should have seen that coming.” When you do something careless, and that carelessness costs someone else money, you pay the ”carelessness tax” – Negligence.
And the kind of person who would steal wifi is more likely to steal something else, isn’t he? So if you invite wifi theft by leaving your home network open, you’re more likely than not also inviting more.
Finally, there are tremendous benefits to the public for there to be more open WiFi available. Getting settlements like this and implying that having open WiFi is negligence and potentially costly, serves to hurt such connectivity and holds back perfectly legal and reasonable options for many people to connect to the internet. While Randazza believes there are ethical issues here, I tend to side with two different NYTimes ethicists, who both came down in favor of open WiFi being perfectly ethical. In many ways, it's beyond ethical, in that it's altruistic, providing the community around you with something useful. Efforts to suggest potential legal liability for such actions strikes me as really nasty and an affront to the belief that helping others connect to the internet is a good thing.
At the end of his response, Randazza notes that he respects the perspective of people who "don't like the negligence claim," and suggests that it's the law we're disagreeing with, rather than his application of it. But I disagree entirely. As the EFF noted, there is no case law that says an open WiFi is negligence, and Randazza's position here seems like a pretty big stretch of the law, especially in light of Section 230 safe harbors. Randazza told me over email that he completely understands and appreciates that folks like myself disagree with him on this, but I think he should revisit his overall approach here. He also mentions that he makes clear to his clients that he will not represent them if he believes it will harm the First Amendment, something (as mentioned earlier) he's famous for helping to protect. But I'd argue he fails on First Amendment grounds in bringing (and defending) these negligence claims.
Trying to get around the proper application of liability and blaming third parties for actions they did not commit, while pushing to shut down a channel of communication, seems very much an attack on basic First Amendment principles. It's an attempt to use legal pressure to stop a form of speech. Yes, some of that speech may be infringement, but the vast majority of speech via open WiFi is not infringement or child porn as Randazza suggests. So, as a staunch First Amendment defender, I hope that he will reconsider his position in bringing such a negligence claim -- and, I hope that he will reject the further use of this highly questionable settlement.
by Mike Masnick
Thu, Aug 18th 2011 7:00pm
from the not-so-difficult dept
Here's yet another example. In a case involving a disgruntled former IT worker logging into his former employer's computer systems and pretty much deleting everything important (including "the company’s e-mail and BlackBerry servers, as well as its order-tracking system and financial-management software"). These sorts of things happen every so often, and the responsible party almost always gets caught.
In this case, Jason Cornish used an open WiFi network at a McDonalds to do his dirty work. But there was enough evidence to link the crime to Cornish (beyond basic motives). For example, investigators discovered that he had made a purchase of some food at that McDonalds about five minutes before the deletion began. Honestly, it looks like he wasn't particularly careful in a variety of things that he did -- but that's kind of the point. The fear about how open WiFi will be regularly abused and there will be "no way" to track down those responsible is a huge exaggeration. Perhaps there are some users who are careful enough not to leave a trail, but those sorts of people will figure out a way to do what they want with or without open WiFi. The fear of untraceable hackers on open WiFi is way overblown.
from the but-but-THEY-are-doing-it dept
I think even the least cynical among us can see what the real aim is here. What concerns me, however, is how the US will respond.
If history is any indication, US officials will denounce this as a restriction on free speech, while at the same time making sure to vigorously support such restrictions at home. They'll probably decry the new Chinese efforts as privacy invasive while doing their best to make ISPs retain data on customers for law enforcement use. No doubt they will have strong words to say about internet censorship around the globe while they craft bills to take down websites with little or no due process. In fact, the very notion of open WiFi itself has been under siege for quite some time. Operating an open connection can already get your internet disconnected, or have your house raided by a swat team. With all that hypocrisy in mind, the next step for the US with regard to open WiFi seems pretty clear.
Lest you think I am engaging in hyperbole, perhaps an exercise is in order. All we need to do is to adjust the stated goals of the Chinese to match current US culture and politics:
1. "Blackmail" is not a hot button issue here, so they might want to claim the needed data retention policies are to stop child porn instead. That always sells well.
2. "Traffic Goods" sounds an awful lot like trading in counterfeit goods. And of course we know that selling fake medicine is just like copyright infringement.
3. "Gambling" is easy enough. We already seize poker sites. We even set up our own fake payment sites so we can steal money from gamblers too!
4. "Propagate damaging information?" What could be more damaging than wikileaks, which we're trying desperately to charge with something (anything!).
5. "Spread computer viruses" fits nicely into the current cybercrime fear-mongering.
Can anyone honestly say that they can't see a US politician standing up tomorrow to announce that we need to start monitoring our own open WiFi connections to stop "child pornography, copyright infringement, online gambling, disclosure of national secrets, and cybercrime?" That's practically the holy grail of political grandstanding, and what politician is going to speak out against that?
by Mike Masnick
Tue, Jul 19th 2011 4:06pm
Copyright Troll John Steele Insists That 70-Year Old Is Responsible For Porn Downloads... Even If Someone Else Used WiFi
from the uh,-no dept
And while it's entirely possible that a 70-year-old would download porn (who says they don't like porn?), in this case, the woman seems suitably confused about what's going on that it seems unlikely. At best, it sounds like she has an open WiFi, which someone else may have used. But, Steele is falsely claiming this doesn't matter:
The letter from Steele suggests that someone else using an unsecured wireless network isn't a viable legal defense for the account holder, noting that downloaders of child pornography have employed this excuse to no avail....This is simply untrue. In fact, generally speaking, US law and courts recognize that "service providers" don't have liability for third party usage of their networks. There are some conditions and exceptions, but to make a blanket claim like Steele did is simply false. Given his track record with these lawsuits and the attempts to pressure people into settling, it's no surprise that he'd mislead like that, but hopefully it just leads up to yet another court smacking him down.
In an interview, he said anyone who fails to secure their Wi-Fi is as responsible for the subsequent crimes or tragedies as a parent who leaves a loaded gun within reach of a 3-year old.
by Mike Masnick
Tue, Jul 19th 2011 4:09am
Judge Agrees That Perhaps It Would Be Best For Someone Else To Review His Claim That WiFi Isn't A Radio Communication
from the good-news dept
Thankfully, the judge has agreed, recognizing that perhaps he didn't answer that initial question correctly.
Thus, in light of the novelty of the issues presented, the court finds that its June 29 order involves a controlling question of law as to which there is a credible basis for a difference of opinion, and also finds that certification of the June 29 order for appeal would materially advance the litigationIn other words... let's make sure I got that part right before we do anything else. That's good. I'm happy to see that Judge James Ware at least recognizes that people may disagree with his contention that WiFi is not a radio communication and will allow that point to be explored further.
by Mike Masnick
Mon, Jul 11th 2011 7:03pm
from the important-questions dept
by Mike Masnick
Mon, Jul 11th 2011 4:13pm