The solution to public surveillance problems should not involve discouraging people from providing public resources like open wireless, since this cuts against the general interest and takes away a common good. As we've explained elsewhere, wireless encryption provides few benefits compared to the much stronger end-to-end encryption, a technology that can thrive alongside environments with open wireless access. The settlement could have gone so much farther by educating people how to run open wireless networks safely and securely—for example, through open guest networks.

It is apparent that too little thought and analysis went into this settlement document, and, as a result, the requirements do the public a huge disservice by hurting the Open Wireless Movement.

These claims are not substantiated by the scientific literature and have little acceptance from medical professionals and the scientific community. This activism therefore amounts to nothing more than fear-mongering by misguided special interest groups who are attempting to have these networks removed.

Nevertheless, the media has been all too willing to fan the flames of controversy and has contributed to a growing false uncertainty over the safety of WiFi. As a result many school boards, libraries, and town councils across Canada have been called on by concerned citizens to limit or remove WiFi networks.

The Open Wireless Movement envisions a world where people readily have access to open wireless Internet connections—a world where sharing one's network in a way that ensures security yet preserves quality is the norm. Much of this vision is attainable now. In fact, many people have routers that already feature "guest networking" capabilities. To make this even easier, we are working with a coalition of volunteer engineers to build technologies that would make it simple for Internet subscribers to portion off their wireless networks for guests and the public while maintaining security, protecting privacy, and preserving quality of access. And we're working with advocates to help change the way people and businesses think about Internet service.

We're also teaching the world about the many benefits of open wireless in order to help society move away from closed networks and to a world in which open access is the default. We are working to debunk myths (and confront truths) about open wireless while creating technologies and legal precedent to ensure it is safe, private, and legal to open your network.

• Motorola, Cisco and Netgear all have licensed the patents in question, meaning that users of that equipment are covered by those patents under the concept of patent exhaustion (basically, if you buy a licensed product, it's licensed). Innovatio conveniently doesn't mention this to the people it sends threat letters to.
• The patents in question are part of commitments to IEEE that they'll only be licensed on RAND terms, but the threat letters demand way more than would be considered "reasonable."
• Incredibly, Innovatio includes some expired patents in the list of patents it has threatened people over. That's a massive no-no. Once a patent is expired you can't demand a license for it. At all.
• Innovatio apparently tells the people it threatens that it'll be cheaper to just settle, rather than to even investigate the claims that it's making -- and has told people that the manufacturers in question aren't defending their customers, which is proven false by the lawsuit, which, again, was filed soon after Innovatio popped up on the scene.
• In an attempt to appear more legit, Innovatio claims that the patents in question have "generated in excess of $1 billion in settlements and license fees" to scare small businesses into complying. It leaves out that it appears to be basing this number on the famous broad patent fight settlement between Qualcomm and Broadcom, which was a wide-ranging cross licensing program, that has nothing to do with Innovatio or its specific patents.

Defendants prey upon end users that are not involved in the development or supply of the accused technologies, demanding exorbitant licensing amounts that breach numerous obligations on the patents and greatly exceed any notion of reasonableness. In furtherance of their plan, Defendants threaten protracted negotiations with onerous burdens on end users, and offer supposed “discounts” for promptly paying Innovatio without engaging in such negotiations, while making it clear that Innovatio will initiate costly litigation with anyone that does not acquiesce (something it cannot realistically do given the 8000-plus letters sent throughout the U.S.). Under these circumstances, Innovatio circumvents its obligations and illegally obtains and seeks to obtain licensing fees to which it is not entitled, at great detriment to the Plaintiffs in this action, their customers, and the public generally.

To date, at least ten of the Innovatio Patents have expired, yet those patents continue to be highlighted in Defendants’ threat letters in furtherance of their licensing campaign. Yet Innovatio states to its licensing targets that “Innovatio proposes granting [the licensing target] an upfront, paid-up license for its use under all of 31 of the issued Innovatio Patents,” when those targets have no liability on and therefore no need of such a license to expired patents. For example, on May 9, 2012, almost one year after the ‘771 patent expired and almost six months after the ‘311 patent expired, Innovatio sent a demand letter to [redacted] .... Innovatio did not provide notice of these or its other patents to [redacted] before expiration. Notwithstanding the expiration of these patents and other patents, Innovatio’s May 9, 2012 demand letter stated “[t]he operation and use of any [WLANs that use the IEEE 802.11 communication protocols] by [redacted] constitutes infringement of at least the following Innovatio Patents: . . . U.S. Patent No. 5,940,771 . . . [and] U.S. Patent No. 6,374,311.” .... Yet circumstances here including a failure to comply with 35 U.S.C. §287, confirms that Innovatio cannot assert infringement or recover damages on at least these expired patent claims. On information and belief, Innovatio never disclosed that these patents had expired, or that its remedies were limited, and the purpose behind inclusion of these patents is to inflate the size of Innovatio’s portfolio, instill fear, increase fees and costs to investigate, and force its targets to capitulate promptly to Innovatio’s unlawful demands.

The Communications and Press Ministry has proposed banning children from using Wi-Fi networks in public, potentially making cafes, restaurants and other locations providing the service responsible for enforcing the law.

Defendant had a duty to secure his Internet connection. Defendant breached that duty by failing to secure his Internet connection.

Reasonable Internet users take steps to secure their Internet access accounts preventing the use of such accounts for an illegal purpose. Defendant’s failure to secure his Internet access account, thereby allowing for its illegal use, constitutes a breach of the ordinary care that a reasonable Internet account holder would do under like circumstances.

Not all of the facts of the case have been released, but we do know that he received and apparently ignored the statutory three warnings from HADOPI, and then was summoned to court, where things started to get interesting. As TorrentFreak reports:

the man told the court today that he is incapable of downloading and did not commit the infringements. Supporting his claims he brought into court the person actually responsible for the file-sharing.

Indeed, he seems to have taken the judgment hard: Guillaume Champeau points out that HADOPI's first victim has now said that he intends to cancel his Internet subscription completely (original story in French). It's hard to see how this kind of result is going to help the growth of digital music in France, and the whole episode is a neat encapsulation of all that is wrong with HADOPI's approach.

Moreover, this case must reinforce the view that HADOPI is a colossal waste of money. In two years of existence, HADOPI has sent out 1.15 million first warnings, 102,854 second notices, and 340 "third strikes". And yet all French government has to show for the 12 million euros it costs to run HADOPI each year is the conviction of one innocent man.

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AF Holdings has not articulated any basis for imposing on Hatfield a legal duty to prevent the infringement of AF Holdings’ copyrighted works, and the court is aware of none. Hatfield is not alleged to have any special relationship with AF Holdings that would give rise to a duty to protect AF Holdings’ copyrights, and is also not alleged to have engaged in any misfeasance by which he created a risk of peril.

The allegations in the complaint are general assertions that in failing to take action to “secure” access to his Internet connection, Hatfield failed to protect AF Holdings from harm. Thus, the complaint plainly alleges that Hatfield’s supposed liability is based on his failure to take particular actions, and not on the taking of any affirmative actions. This allegation of non-feasance cannot support a claim of negligence in the absence of facts showing the existence of a special relationship.

AF Holdings is seeking to protect its “exclusive rights” from “copying and sharing.” Simply recharacterizing the claim as one of “negligence” does not add a legally cognizable additional element.... Thus, because AF Holdings alleges that Hatfield’s action or inaction constituted interference with its “exclusive rights in the copyrighted work,” the negligence claim is preempted by § 301 of the Copyright Act.

... upon examination, the proposition that Wi-Fi communications are accessible only with sophisticated technology breaks down. As mentioned above, Innovatio is intercepting Wi-Fi communications with a Riverbed AirPcap Nx packet capture adapter, which is available to the public for purchase for $698.00. See Riverbed Technology Product Catalog, http://www.cacetech.com/products/catalog/ (last visited Aug. 21, 2012). A more basic packet capture adapter is available for only $198.00. Id. The software necessary to analyze the data that the packet capture adapters collect is available for down load for free. See Wireshark Frequently Asked Questions, http://www.wireshark.org/faq.html#sec1 (last visited Aug. 21, 2012) ("Wireshark is a network protocol analyzer. . . . It is freely available as open source. . . ."). With a packet capture adapter and the software, along with a basic laptop computer, any member of the general public within range of an unencrypted Wi-Fi network can begin intercepting communications sent on that network. Many Wi-Fi networks provided by commercial establishments (such as coffee shops and restaurants) are unencrypted, and open to such interference from anyone with the right equipment. In light of the ease of "sniffing" Wi-Fi networks, the court concludes that the communications sent on an unencrypted Wi-Fi network are readily available to the general public.

A first for any Olympic Games is the ban on personal or private wireless access points and 3G hubs, which are not allowed at London Olympics events and venues.

iPhones, iPads, and Android phones and tablets are permitted inside venues, but must not be used as wireless access points to connect multiple devices.

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.

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. In light of the preceding discussion and the doctrine of contributory infringement – which Liberty’s memorandum ignores entirely – that position is untenable.

LMH’s theory of liability cannot withstand even passing scrutiny. No matter how artfully pled, LMH’s claim sounds in, and is preempted by, copyright law. And as decades of copyright jurisprudence and legislation make clear, that body of law does not recognize a cause of action based on mere negligence. Accordingly, no court has ever found, or could ever find, that anyone has violated copyright law simply because another user of his or her Internet connection did so.

And that is a good thing. Every day cafes, airports, libraries, laundromats, schools and individuals operate “open” Wi-Fi routers, sharing their connection with neighbors and passers-by at no charge. Sometimes people use those connections for bad acts. Most of the time they don’t, and the world gets a valuable public service of simple, ubiquitous Internet access.

Creating a duty under tort law to prevent others from infringing copyright would drastically inhibit this activity, to the detriment of the general public and clear federal copyright and telecommunications policies promoting convenient, universal access to the Internet. Thus, manufacturing a new copyright cause of action based on negligence – which, make no mistake, is precisely what LMH asks the Court to do – would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Detective Superintendent Brian Hay said police have identified a large number of homes and businesses within the greater Brisbane area with wireless connections that are not secure or have limited protection. These people may as well put their bank account details, passwords and personal details on a billboard on the side of the highway.

“Unprotected or unsecured wireless networks are easy to infiltrate and hack. Criminals can then either take over the connection and commit fraud online or steal the personal details of the owner. This is definitely the next step in identity fraud.”

"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.

Ultimately, he said, Innovatio’s "plan is to license this portfolio to the fullest extent possible. That would include anyone who's wireless networking."

"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."

• $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

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).

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?

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.

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....

[....]

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.

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 litigation