No, Having Open WiFi Does Not Make You 'Negligent' And Liable For $10,000

from the no-freaking-way dept

That Anonymous Coward was the first of a few of you to send over the news that one of the "John Does" sued by Corbin Fisher/Liberty Media has settled. Corbin Fisher is a porn company that has followed the footsteps of others down the mass infringement lawsuits path that many of us note feels a lot more like a shakedown process than a reasonable use of copyright law. Even more troubling, in our view, is that one of the theories presented by the company is that anyone who has an open WiFi network, and uses that as an explanation for what happened, is guilty of negligence. Given the vast number of good reasons to leave a WiFi network open, we found this quite troubling.

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
While we have issues with a lot of this, it's that last part that is super troubling. While this is not a legal ruling, just the fact that it's in a settlement will allow Corbin Fisher and others to wave the document around, warning others that if they want to claim that their WiFi was open -- a potentially legitimate defense -- they now risk a massive fine for so-called "negligence." This is insulting, dangerous and ridiculous. There are all sorts of legitimate reasons to leave your WiFi network open and almost none of them amount to "negligence," by any stretch of the imagination.

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?

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.
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.

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.

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  1. icon
    G Thompson (profile), 19 Aug 2011 @ 10:43pm

    Negligence - The tort of Insurance and snails

    I posted this above in a to a reply to Mike, but after reading all the comments I thought it might also be relevant as it's own thread.
    --->

    I think I, and I feel somehow unclean for stating this, that the AC has a point though is not expressing it succinctly.

    It boils down to what is classified, under law, as a service provider, and if the possessor of the service had the INTENT to create the open networks a provision of service to some type of community.

    If it can be shown that Joe Blogs had no intention of creating an open-wifi community access point and instead only had the network world viewable as a result of mistake, not reading the manual (technical knowledge), or by design of the manufacturer (always on unless off) then there is really no intent to become a Service Provider so therefore the Sect 230 defence would not apply.

    =============

    Though this does not mean they are still Negligent, or for those law students.. It does not pass the snail test ;)

    To be negligent a few elements have to be proven, first and foremost is duty.

    Does the respondent (Wifi Owner) have a REASONABLE DUTY to stop nefarious or tortuous acts occurring that might under balance of probabilities create a situation where it harms the plaintiff (IP holder).

    The second element is whether there is an actual Breach of that Duty (if a duty exists). This only occurs if the Wifi Owner KNOWINGLY (which is purely subjective and based on reasonableness and community standards) creates the situation that COULD expose the IPHolder to SUBSTANTIAL risk of harm occurring (note it can not be de minimus harm.. ie: tiny or a very low probability of occurrence).

    The third element is Causation... This asks whether what the WifiOwner did actually caused the damage to the IPHolder. In other words, would the damage to the IPHolder of occurred anyway no matter what the WifiOwner did? Another part of causation is what is called remoteness, (proximate cause in the USA). This basically asks that even though there is a causation, is the causation so remote as to be unforeseeable. or indeterminable. [This basically stops Kevin Bacon from suing you since you didn't invite him to the party you held because you were on the 4th to 6th step of the separation ;o ]

    The next element, and this one is a doozy for all Intellectual Property cases (Copyright, Patent, Trademark) is HARM. Can the plaintiff, in this case Corbin Fisher, show using probable evidence actual harm done by the respondent (Wifi Owner) if the above three elements have been proven.

    Because without harm being proven, damages which are used to Restitutio in integrum (restore to original condition.. what neg claims are really all about) can not be given since 'no harm... no foul'

    For damages (in this case $10,000) to be given if it went to court, not only do all the elements above need to be proven based on preponderance of evidence (and in Duty must be fair, just and reasonable) actual provable, using the rules of evidence and discovery, needs to be shown.

    The elements above, and the big major problem of showing Harm, is the main reason why representatives, in this case Randazza, do NOT want these cases going to court, since they know that even if they can show their is a duty that has been breached and in all likelihood caused harm, they need to show actual PECUNIARY HARM for any damages to be awarded.

    The problem is the system worldwide in these sort of civil cases is that the side with the most money in the beginning, wins. So people will just pay the extortion fees (and Yes it is a form of extortion since it becomes a type of undue influence and/or duress ) which is why advocacy agencies like EFF are so needed.

    ========

    Also for all the AC's who keep saying this place is turning into a Law blog... there is no chance of this since a law blog has AC commentators whom are actually civil, are willing to listen to the opinions of all, and contribute to the conversational threads. This place has very few AC's who actually do this consistently. In other words its more real life and why I prefer TD over the at times dry and mind numbing mainstream law blogs (does not include Popehat, Satyricon, Above the law etc)

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