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.