I am a proponent of the "open wifi=negligence" theory. I still think it is a sound theory, but I also acknowledge that it is now 0-3, and it isn't likely to go anywhere soon -- at least not until someone other than a porn company raises it.
I think that the decisions that say it is pre-empted are erroneous, and the result of judicial laziness, at best. I don't see how a common law claim can pre-empt another common-law claim. Further, negligence requires an additional element, beyond the infringement, which places it outside of pre-emption. But, when your judge is lazy or simply hostile to torrent actions, then you're not going to get anywhere with that.
The Section 230 analysis is just plain stupid - especially when we consider it in light of the pre-emption analysis.
Extending section 230's definition of a "service provider" to a residential subscriber, who leaves their wi-fi open, has neither a textual nor logical basis, nor does the legislative history of the Act support such a reading.
Further, if we understand that Section 230 exempts IP claims, but we say that it applies nonetheless, because the negligence claim is a state law claim, then the pre-emption analysis' weakness shows itself. If it is an IP claim, then Section 230 doesn't apply. So, if it is pre-empted, then Section 230 can't apply. On the other hand, if it is not an IP claim, then it can't be pre-empted. You can only have Section 230 or pre-emption, no matter how much you want to screw over Prenda to get them the hell out of your district.
On the other hand, the weak link in the open wi-fi negligence theory is proving the existence (or non-existence) of a legal duty. Whether there is a legal duty is for the courts to decide, as stated in the "tugboat case." That's what The TJ Hooper case stands for - it is the province of the courts to recognize, or reject, new duties of care in tort actions.
If the court finds no duty, then there is no duty. In part, I like this AF Holdings case, because this court, unlike the two before it, finally did the work of analyzing whether or not a duty exists. It may not bind any other court, but at least it finally devoted some thought to that element. That is where the debate really should be focused.
A recent Wyoming Supreme Court case tends to support the logic that open wifi would not expose the subscriber in a negligence claim. It has some good analysis of both the duty analysis and the causation analysis.
In Lucero v. Holbrook, 2012 WY 152 (Wy. 2012) the defendant left a running car in the driveway, and a meth-head walked by, stole it, and crashed it into the plaintiff after a high-speed chase. The plaintiff argued, logically, that had she not done something so foolish as leave her car running, unattended, no harm would have come to her.
The Wyoming Supreme Court found that not only was there no duty, but that the harm was not proximately caused by the defendant's carelessness. These are arguments that might also fly in a defense against an open wifi negligence case. Of course, the Wyoming case might have turned differently, had the car been left on a public street, instead of in the owner's driveway - as there is a statute that prohibits leaving the car unattended and unsecured on a public highway. But, that's a matter of state law. Compare State v. Eckhardt, 165 Vt 606; 686 A.2d 104 (Vt. 1996) (Private driveway considered to be a "public highway" for purposes of enforcing DUI statute).
Naturally, all legal analogies break somewhere. So, we might one day find that a court gets past the lazy issues, and then finds that leaving your residential wi-fi open is different than a car accident, and the harm is foreseeable. Or, the thread may continue, with proximate cause or duty (or both) turning against the theory. We may see a sliding scale for forseeability - that in an urban area, the harm is almost certain to occur, and in a rural area, almost impossible that it would occur. A court might find that it applies to a residence, but that a commercial establishment with public wifi might fall under another standard. (Personally, I think that a commercial establishment should not be held negligent for having an open wifi, but I think that a residential customer should be, under the right facts).
Before you open your wi-fi to celebrate this case, wait for an appellate court to weigh in. One will have to, sooner or later, and it might conclusively reject the existence of a duty, but it might not. I am confident that the pre-emption analysis will eventually be rejected by an appellate court. But, then you're going to be left with some heavily fact-based analysis of duty and proximate cause.
This is one of the dumbest defense arguments anyone could raise.
When you think about these cases, think about them rationally. To make it pretty simple: Copyright is exclusively a federal issue. That is why you have to bring copyright claims in federal court. The reason being that you don't want copyright protection to vary from state to state.
Obscenity is a purely local community standard. What is "obscene" in Bibleburg, Mississippi might be completely run-of-the-mill in Las Vegas or Miami.
So, you can't have copyright protection as a patchwork of being protectable in one place, but not another, and over that hill, yonder, it is protected, but not here in this neighborhood.
Anyone who espouses the theory that copyright protection has any relationship to obscenity is a) uneducated on the law, b) lacks the simply ability to use Google c) is so abjectly fucking stupid that they should be sterilized to keep more idiots from populating the earth.
I think it is unfair to call it the "Carreon Effect" -- not just because I still (please forgive me for this) like Chas. But, because the effect that Carreon is experiencing is one that already has a name -- it is named after the guy who already sued the entire internet.
Can I make a little request? You state in your post that you know me and like me (thanks, its mutual). You know my email address. You know my phone number. You have the right to use either one.
If you're going to mention me in a piece, you think you could take 5 minutes to ask for comment? It might actually help you make your post accurate.
1) If you look at the case, you'll find that I am NOT counsel in the Liberty v. Tabora case in New York. Marco Santori is representing Liberty in that case.
2) The EFF is lying, not misrepresenting, not fibbing, lying, about the negligence theory in the case. It has nothing, whatsoever to do with open wifi. Nothing. Nada. Not even mentioned. The only place it is mentioned is in the EFF's lying brief in which they claim that is the issue.
The real story is that Tabora knew that Whetstone was using his internet connection for piracy. The negligence theory is that if T knows that W is committing a crime with his account, and still lets him use is, then T is negligent.
You see? Nothing to do with open WiFi whatsoever.
So the court won't be giving a "clear statement" on the open Wifi theory. Not at all. Because the EFF is lying to try and fool bloggers and journalists who are too lazy to actually look at the case.
It might be good for your credibility to make your report something more than a parroting of the lies.
Now that said, you still might philosophically disagree with the theory -- and that's fair enough. But for fucks sake, at least build it on a foundation of truth and accuracy.
Anonymous Coward wrote "Pirate Mike pretends like this is not the law or the law's purpose, but the Supreme Court couldn't be anymore clear."
I don't think that is a) accurate, b) fair. Mike does have some views on copyright that diverge from mine, and apparently yours. However, I don't think that he disagrees with the "promote the progress" portion of copyright law. Mike simply takes the position that the current state of copyright law does not do that.
I also don't think that Mike is "pro piracy." He simply thinks that some actions are not piracy, which I (and you, I guess) think they are. He also takes the position that if they are piracy, the deck and the consequences are too stacked against the defendant.
There is plenty of room for respectful disagreement with him. Don't be a douche.
Re: Re: Also please deal with false DMCA takedowns
My favorite remedy would be that the statutory damages for each false DMCA takedown are equal to the statutory damages for each instance of copyright infringement.
What is that, $150,000 per false DMCA takedown filed?
It also might not hurt to put SOME TEETH into that "under penalty of perjury" thingy.
Agreed. While Lenz v. Universal shows that section 512 can bite back, it is so rare because the law is not really designed to care about fair use. I'm not sure about the limit you suggest (although I'm not entirely against it), but some very real penalties for false, and even erroneous, DMCA takedowns are in order.
The problem with fair use is that it has few barbs. During all the talk about copyright reform, i've been consistently disappointed to see no greater protections for fair use. I'd like to see us follow Brazil's lead, with penalties for hindering fair use. A national anti-slapp bill would kill two birds with one stone, but giving Section 107 bigger balls, with a mandatory attorneys fees provision for defendants who successfully raise a fair use defense, that would be a thing of beauty.
It is pretty easy, using existing law. If there are "substantial non-infringing uses," and the infringing uses are merely incidental to the technology, then no problem.
If the use is clearly to promote infringement, or if it outwardly rewards infringement, then you don't even need your obvious-meter.
This is why VCRs are permissible, and why Grokster isn't. It is why Limewire lost its case, and why I predict Hotfile will as well. Meanwhile, I couldn't possibly see Dropbox losing a Hotfile-style case.
dwg wrote: "What about going to the source of the open-ness, sir? In other words, how about those who ship routers in an open state? I agree with the framework you lay out in the ether for negligence liability, but I just don't see the duty on the part of the router recipient/owner, and I don't see the foreseeability at all. Is it a case-by-case basis, where Granny gets a pass, but a 16-year-old is liable? Because that seems incredibly shaky. But on the part of the router seller?
I think you grasp the concept of negligence well here, but you don't seem to agree with it. The fact is that granny and a 16 year old just might have different windows of liability. I could certainly see a court saying "this 90 year old woman had no clue, and a reasonably prudent person in her position wouldn't have a clue." On the other hand, a 28 year old computer network engineer would have a clue.
As far as holding the router manufacturer liable goes, I don't think you could push it that far. I hear that question a lot, and it is simply a straw man. By that virtue, how far back would we go? Could we hold the guy in China who dug the silicon out of the ground liable?
Negligence is often a case-by-case analysis. One person might be negligent and in another similar case, the other defendant would not be. But, no, I don't think the router seller would be.
With the utmost sincerity, I appreciate the critique of the theory. I may disagree, but we can spar with our friends, and choosing them based upon how much they agree with us is a shitty way to set up a meaningful existence.
I disagree with a few of the opinions in this piece though. I am uncertain how my theory " is actually doing significant harm to causes [I] claim to support." I disagree with the claim that mine is an anti First Amendment position. You're not going to find a more ardent supporter of First Amendment rights than me. In fact, my engagement letters make it clear that I will withdraw from representation of a client if their interests conflict with the First Amendment. In fact, my firm's policies operate on a modified version of the laws of robotics, in which the First Amendment is the prime protected party.
I simply see no free speech issue with holding an open wifi operator liable for negligence, if the harm is forseeable. The question for the court may very well be whether it was forseeable, and I am prepared to meet that challenge. I even expect that I will find myself standing across the aisle from people I consider to be my friends and allies in other fights.
But, I stand behind the theory. I respect the dissent from it. But come on, you can't say that holding someone responsible on a "you break it, you buy it" theory does harm to the First Amendment. Don't diminish your other fair and reasonable arguments by throwing that out there to see if it sticks. It does not.
Despite that, I do think that this article presents the most measured, professional, and educated view of the opposing view that I have read thus far. Let us see where the marketplace of ideas and the courts lead us, because I think that this debate is long from over. Should it pan out that the theory is eventually discredited, I will feel that it was still a worthwhile endeavor to present it.