Not Securing Your Internet Access To Block Infringement Is 'Negligence'?

from the yes,-well... dept

Porn movie studio Liberty Media has been pretty aggressive lately in its attempt to jump on the bandwagon trying to get file sharers to pay up by either threatening them with lawsuits or suing them. The latest move by the firm is to file a similar lawsuit against a bunch of people for file sharing… but with one interesting difference. Rather than just lumping together everyone who downloaded the same file, Liberty is suing a specific BitTorrent swarm, noting the specific info about each IP address that joined the swarm (including when they joined).

While some of the other lawyers in other such mass lawsuit campaigns have made more general arguments along these lines — suggesting that since BitTorrent users swarm together it’s okay to lump them all into a single lawsuit, this is the first one that specifically targets a single swarm and provides all such details. This also lets Liberty add a “civil conspiracy” charge on top of the copyright charges (both direct and contributory infringement). The conspiracy charge seems pretty weak to me. It seems to suggest that merely downloading the BitTorrent client is a sign of proactively joining a conspiracy. That seems like a huge stretch, as there are plenty of legal reasons to use BitTorrent software. Even if most BitTorrent traffic is infringing, merely downloading the client is hardly evidence of a plan to join a “conspiracy.”

Separately, there’s a “negligence” charge, which seems even weaker than the conspiracy charge. Here, the negligence claim is used to go after anyone who did not secure their internet connection to prevent such usage. That seems like a huge stretch, and I can’t see that getting very far. There’s simply no proactive requirement that anyone secure their internet connection to prevent any infringement from happening over it:

Defendants failed to adequately secure their Internet access, whether accessible only through their computer when physically connected to an Internet router, or accessible to many computers by use of a wireless router, and failed to prevent its use for this unlawful purpose.

Reasonable Internet users take steps to secure their Internet access accounts to prevent the use of such accounts for nefarious and illegal purposes. As such, Defendants’ failure to secure their Internet access accounts, and thereby prevent such illegal uses thereof, constitutes a breach of the ordinary care that reasonable persons exercise in using an Internet access account.

That seems like a huge leap, and I’d be amazed if a court bought that argument. As for the effort to lump together everyone in the swarm… that seems to have a much higher likelihood of success than some of the other lawsuits that have been dumped on joinder issues, but I still think it’s a pretty weak claim. The individuals each are totally unknown to each other, may have totally different reasons, defenses, explanations. However, I could see a court much more open to this “swarm” argument than the other random lumping together arguments we’ve seen.

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Comments on “Not Securing Your Internet Access To Block Infringement Is 'Negligence'?”

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75 Comments
TheStupidOne says:

Re: Re: Isn't it, technically?

Depends on your definition of substantial is I suppose. I know a lot of people consider WoW to be substantial. Also there are some TV shows, movies, music, and other files that were released on BitTorrent by the copyright owners. That may be a minority of the worldwide BitTorrent traffic, but I’d say it is substantial.

montgoss (profile) says:

Re: Re: Isn't it, technically?

Tough? Really?
A torrent client comes preinstalled on Ubuntu and many linux distros use torrents to distribute their isos. Not to mention big companies use it, like Blizzard does to release updates for WoW.
I just legally downloaded a movie I found through Techdirt that had a torrent download option.

There is a lot of non-infringing use these days.

Justin Olbrantz (Quantam) (user link) says:

Re: Re:

Let me correct that analogy before the trolls do it for you and miss the fact that the correct version is almost as absurd: “So if I leave my keys in my car with the doors unlocked and someone steals it and uses it as the getaway vehicle in a bank robbery, I can be charged with abetting the crime because I did not ensure my car was properly secured?”

Rose M. Welch (profile) says:

Re: Re: Re:

Not the same thing, because plaintiffs have no way of knowing if the wireless access used was secured with a WPA key or anything else. It’s entirely possible that the teen next door broke into a defendant’s secured connection and used it to download infringing material. Regardless, they’re insisting that the fact that the connection was used it enough to show that they didn’t secure their connections.

HM says:

Re: Re: Re: Re:

Your right they have no way to know. Until someone claims “it wasn’t me someone else must have accessed my router and did it.” I think this is just a preemptive assault on that defense as I’m sure its a common one. So if they charge everyone with the negligence off the bat you pleading innocent to the infringement and saying someone else must have been it doing it means you are pleading guilty to the negligence.

At least I imagine that is what they are up to.

vivaelamor (profile) says:

Re: Re: Re:2 Re:

“So if they charge everyone with the negligence off the bat you pleading innocent to the infringement and saying someone else must have been it doing it means you are pleading guilty to the negligence.”

But the point is that someone else could access a secured connection. I guess the question becomes one of whether you are you negligent if someone cracks into your secured connection.

HM says:

Re: Re: Re:

I think the car analogy is closer. A gun is a weapon, if someone takes it I can assume they will use it as a weapon.

A router or a car is a tool. If someone borrows/steals my car or my internet access it not a safe to assume they are going to use it for nefarious purposes. As there are plenty of non-nefarious uses for a car or internet access.

I might by it if you say an unloaded gun and the thief provided his own bullets. As what you left lying around isnt dangerous by itself but does have the potential to be.

Really they are both stupid analogies and I dont know why i am putting so much thought into this :b

btr1701 (profile) says:

Re: Re: Re:

> You left a loaded gun on your publicly
> accessible front porch. If someone used
> that gun to commit a crime, you likely
> are negligent in the safe keeping of the
> weapon.

Only problem with that: there are laws in all 50 states that require gun owners to properly secure their weapons.

There are no such legal requirements imposed upon WiFi users.

Anonymous Coward says:

Re: Re: Re:

Actually, you make me think of a interesting question…IF the negligence case holds up, can the defense pass the case along to the ISPs since the ISPs didn’t secure their network to prevent this kind of traffic, thus making them the root or backbone of the infringement problem?

Dark Helmet (profile) says:

Conspiracy charge...

“The individuals each are totally unknown to each other, may have totally different reasons, defenses, explanations.”

I seem to recall that for at least some conspiracy charges, the above doesn’t matter. Defendents don’t have to know one another or have similar motivations, they only need to know that they are partaking with others in an illegal (criminal?) act….

cc (profile) says:

Re: Conspiracy charge...

I think Mike took “the swarm” to mean the tracker. I think they mean “the group that was sharing a certain file”.

Basically, it’s a trick to get around jurisdiction issues by suing the individuals as a group of conspirators instead of a group of unconnected infringers. Hopefully the courts will see through it… but they might not if they get another technologically clueless and/or corrupt judge.

btr1701 (profile) says:

Re: Conspiracy charge...

> they only need to know that they are partaking
> with others in an illegal (criminal?) act….

I can’t speak for all the state jurisdictions, but the federal conspiracy law requires that two or more defendants enter into an affirmative agreement with one another to commit a criminal offense.

If an armored car turns over on a freeway and everyone leaps out of their cars and starts scooping up the millions of dollars fluttering everywhere, are they all guilty of conspiracy? I don’t think any prosecutor would try and make that case.

What they’re doing is wrong– theft– no question, but it’s absurd to suggest all these total strangers conspired with one another to do it, even though, as you say, they’re aware in the moment that they’re partaking with others in an illegal act.

Matt P (profile) says:

“Here, the negligence claim is used to go after anyone who did not secure their internet connection to prevent such usage. That seems like a huge stretch, and I can’t see that getting very far. There’s simply no proactive requirement that anyone secure their internet connection to prevent any infringement from happening over it”

They’re making this part of the 3-strikes law down here in New Zealand. Even after we all pointed out to our MPs how moronic a policy this is, some clowns that have never touched a router can tell us that we should take steps to make sure our wifi can’t be used for ‘criminal activity’.

End result: wifi will be going away.

Anonymous Coward says:

So if you secure your internet access, (which can be hacked/cracked/sniffed/spoofed relatively VERY fast compaired to downloading a larger torrent over wifi), does it PROVE that you were the one that downloaded it? So if you didn’t secure your connection, you did it. If you did secure your connection, you did it. Even if it was someone else that did it either way? Some real and nefarious conspiricy maker, will likely crack politicians Wifi, and use/share that connection very obviously, until the politician gets harrassed like a criminal, and due to their efforts, they must be liable.

iamtheky (profile) says:

EFFing Randazza

Please add this madness to the laundry list of bogus arguments and pure logical failures that Randazza is offering up for Liberty Media.

I suppose this is one step up from calling them ‘hackers’, but still I dont know how the EFF could in good faith still recommend his services for the defense of lawsuits such as these.

Anonymous Coward says:

Re: EFFing Randazza

I contacted EFF about this a while ago, and they said that anyone working for the Randazza legal group is only recommended for work against Righthaven, not in p2p cases. If you look at EFF’s list of attorneys that can help you, it does say “Righthaven Cases Only” next to attorneys that work for Randazza (in Nevada and Wisconsin). I still think EFF should send absolutely no work Randazza’s way, though.

https://www.eff.org/issues/file-sharing/subpoena-defense

Anonymous Coward says:

Quote:

The conspiracy charge seems pretty weak to me. It seems to suggest that merely downloading the BitTorrent client is a sign of proactively joining a conspiracy. That seems like a huge stretch, as there are plenty of legal reasons to use BitTorrent software. Even if most BitTorrent traffic is infringing, merely downloading the client is hardly evidence of a plan to join a “conspiracy.”

What I do understand about “swarns” on Bittorrent is that they are created around individual files and not the Bittorrent client itself one needs to have download the torrent file and that is an active action that could be construed as a deliberate or conscious action.

Still it proves nothing since IP spoofing is being used and that connection could be just be openned and sit there for 15 minutes until it gets dropped as a no good connection but it will show up in the records and it probably will be someone that never used P2P, now that will be funny.

Every tracker out there should go to look for the IP ranges that include Washington DC, so everybody in there gets sued.

keloidformer says:

The Loophole

It’s an interesting approach to what is otherwise a glaring hole in the P2P/Illegal downloading Prosecution scheme:

Let’s say, hypothetically of course, that I am engaged in illegal activity by downloading copyrighted material using a Bit Torrent client, over my (currently protected) Wi-Fi network.

If I were to be summoned, served, or otherwise notified of an impending suite, the FIRST thing I would do is UN-PROTECT my Wi-Fi network, and claim, baby-seal-eyed, that “some hooligan must have taken advantage of my open attitude toward internet access.”

Unless they can match IP to MAC address (which they can’t behind routers), then there is no way to specifically finger a machine – and even then, if the machine has open (guest) access – the user…

As tenuous as the Prosecution’s argument is, *generally speaking* IF I leave my car unlocked, I am not going to be held liable – HOWEVER – if I leave my keys in the car and engine running, then that is considered negligence and facilitation of any crime involving the car:

http://www.insurancejournal.com/news/southeast/2010/12/13/115597.htm

The burden of proof is also different in civil vs. criminal cases where the litmus test for ‘guilty’ is much broader i terms of evidence.

hmm (profile) says:

they removed the wifi = evil thing but....

they have the follows:

?Burning CD copies of music you have downloaded and then giving them to all your friends

basically claiming that anything downloaded = evil piracy/theft/baby murdering etc….

What happens if the music I just downloaded was Mike’s surprise billboard #1 hit ‘Corruption in High Places?’ and he was giving it away for free?

(To sell ‘The RIAA got millions from my songs and all I got was this lousy t-shirt (and now they want it back)’ t-shirts

Anonymous Coward says:

The Corbin Fisher porn studio that is under the Liberty Media umbrella and is maker of the film in question just recently changed the Terms and Conditions for their subscribing members to basically say that if a member doesn’t secure their account and password well enough and gets hacked causing CF films to be stolen and shared, the member is on the hook for $25,000:

http://www.queerty.com/you-owe-corbin-fisher-25k-if-your-account-gets-hacked-and-someone-pirates-their-videos-20110324/

Justin Olbrantz (Quantam) (user link) says:

Re: Re:

Funny how there’s a very high correlation between people the negligence claim applies to and people who DON’T download stuff (because they have no idea how). There’s also a high correlation between people who illegally download stuff and people who use other people’s wireless specifically to avoid getting caught.

You’re certainly right this is going to hit a whole lot of people where it hurts, but it’s gonna be everybody but the pirates.

Chris Rhodes (profile) says:

Re: Re: Re:3 Re:

Pot. Kettle. Etc.

You know, this might actually turn out to be funny. All the pirates have to do is go war-driving when they want music and some 90-year old grandma who doesn’t know what an IP address is will get hit with negligence. I imagine some unscrupulous people will figure out exactly which files are being monitored by the *IAA and specifically download those from as many open connections as they can find.

Starbucks, your free WiFi days are numbered!

Jay says:

Re: Re: Re:3 Re:

I’ll just save my substance for posts that actually have substance.

You’re just going on about your “hero” Randazza with nothing other than an anti-Techdirt propaganda post. Great but there’s really nothing here to even debate.

*shrug*

Oh well, guess I’ll have to actually wait for a post with substance.

Anonymous Coward says:

Re: Re: Re:4 Re:

You’re right. I wasn’t trying to start a debate. I simply think that Randazza’s done a very smart thing with this filing, and I was expressing my admiration. Like I said, I think others will follow this model. It cuts right through the misjoinder argument. Personally, I’d like to see some of these cases litigated just so we can get more clarity on the legal issues in play.

Jay says:

Re: Re: Re:5 Re:

We already know it’s a money grab and that’s the problem. That’s why I’m not a fan of the legal system being used in this manner.

It shows signs of an ultimately weak company that can’t do much other than propagate itself through settlements.

Face it, a troll in patent law (Myrvohld) is the same as a troll in copyright law, which is still not helping us progress.

Mike Masnick (profile) says:

Re: Re:

Great job, Marc Randazza! That’s how you blow the misjoinder arguments away! Kudos. When you’ve got Mike Masnick and his pirate gang all complaining about you, you know you’re hitting the pirates where it hurts. Job well done

Weird. Did you not read the part of the post where I said this method of joining them appears to make a lot more sense?

Are you really so desperate to (as you have said) “shit on” me, that you can’t even read what I wrote? Apparently.

Sad.

Jay says:

Re: Re: Re:3 Re:

Ya know, it’s not that hard to figure out which AC is which, particularly when they have the same bad habits and idioms. If you want to debate feel free to do so. If the only thing you’re here for is to attract flame bait, feel free. It just weakens your argument when you do such childish behaviors.

Anonymous Coward says:

Here, the negligence claim is used to go after anyone who did not secure their internet connection to prevent such usage.
———-
I got to tell ya, most users of routers have no clue how to access their setup pages in the router. They have no clue how to port forward. To port forward you must first be able to access the setup page.

Worse, there is no standardization of routers. Every maker has a different way to accomplish setups and every one of them have different nomenclatures, often between different models by the same makers.

If it’s the first time you’ve seen a router setup page, I feel for you because you are a lost puppy at the start when you don’t understand the words they are using, what functions they are referring to, or how to go about setting it up.

This is a very weak case for negligence, just like ignorance is no excuse for breaking the law, yet it takes a lawyer to explain what the law is. The lawyer just doesn’t wake up one morning and realize he knows law. He goes to school for it for years.

The idea that this is negligence is assine. Just like the lawyer, everyone does not go to school for computer science. Worse if they do manage to set it up, there are plenty of wifi sniffing programs to not only locate other routers on wifi but to break those security protocols. This is a common occurrence called wardriving, where someone with a laptop in a car on the street makes use of a router so their ip isn’t recorded.

It’s like blaming the home owner for having items that tempt the burger to break in and then charging the home owner for the crime of stealing.

Anonymous Coward says:

Re: Re:

I don’t invite other people to use my wifi, but I see no harm in leaving it open. From my house I get usable signal strength on about nine unsecured wifi networks, some belonging to quite distant hotels, and since a couple of them have a much faster connection than me I occasionally use them myself. I used to secure mine but now I don’t bother. It was always a royal pain in the ass to connect less sophisticated wifi-enabled appliances, which often involved temporarily unsecuring the router, so in the end I just left it open.

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