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About Me
Saturday, August 20, 2011
No Having Open WiFi Does Not Make You 'Negligent' And Liable For $10,000
And so we 're very concerned about this particular settlement, which you see embedded below. The full payment of Doe's $ 10 401, but the plan is as follows:
- $ 200 for innocent infringement
- $ 200 for contributory infringement
- To pay $ 1 from the conspiracy charge ... Although not admit to (another theory is presented that in the use of BitTorrent, enter into a "conspiracy" - a claim we won 't debate this time but another time again) a conspiracy
- $ 10,000 for Negligence an open router
As I 'have already been mentioned in the past, I' \ m by the fact that the lawyer Corbin Fisher / Liberty Media, in this case Marc Randazza, who has done some fantastic work in the past and present, in order to free speech defend is, surprisingly rights - including the takeover of a large number of defendants against copyright troll Right Haven, despite his efforts do bear some striking similarities to what is Corbin Fisher here. In fact Randazza has at the forefront of many of the recent victories against Right Haven, and various attempts to force Right Haven pay for the abuse of the courts, to shake people have been down.
I like and respect Randazza and sent a couple of interesting cases in his way, when people I know needs legal assistance have about attacks on their rights to free speech. He 's also helped us at times when we' ve threatened with false claims. But I still have difficulties to understand his position on these cases Corbin Fisher, to beat me as the same, or in some cases, worse as some of these other efforts. Because, I emailed Marc and told him I would write a contribution to this settlement and the fact that I think it 'sa terrible and dangerous result, which used to people who open WiFi networks for perfectly legitimate reasons that are harassing and asked if he had any comment. He wrote back a long answer, which he also at TorrentFreak, which sent it written as an article.
This is a time where I think is wrong Randazza to 100%, and actually makes it caused considerable damage claims support. Luckily, the folks at the EFF (the list Randazza to speak as a lawyer, if you \ s argument, based effectively on "have once again hit by copyright for money trolls) to the legal basis of the Randazza was unmasked" a famous case of negligence in tractor radios. The EFF points out that such negligence claims are clearly ruled out by a service provider for § 230:
Perhaps hoping to avoid this limitation, an attempt that the operator may be held liable under a general negligence theory of tort (that is, it 's no copyright claim to give only a general claim of injury) are . But this approach falls immediately against another legal wall. Section 230 of the Communications Decency Act provides broad immunity from claims in tort (including negligence) for providers of "interactive computer services" for claims arising from the activities of their users. The Statute of the 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 settlementis how it is used (whether by Randazza or others) to be wrong implythat an open WiFi network - which is perfectly legal - is not a defense if sued. In fact, the truly shameful part of this, that it does not only mean you can 't use that defense, this implies further liability on which this very legal use of WiFi as part of your defense. Everything that effectively takes the legal defense against a questionable legal claim, and implies that you actually hurt yourself is activated only for them immensely disturbing.
Randazza claims that negligence claims are really a way of saying "You should come see it. \ Do" But that 's ridiculous. It implies that someone must be left open WiFi assume that people who use open WiFi for illegal activities. That 'sa huge leap. There are safety reasons why you might want your own secure WiFi ... But there are alternative ways to surf to your home and your home network secure, while still leaving open WiFi network. Randazza 's make statements suggest that' s not possible and that any opening up their home WiFi should know that it 's likely to be used for illegal activities.
As the EFF, I 'm also by the way, that Randazza seems to ignore the basic concepts of liability apply correctly worried. We have safe havens in the DMCA and the CDA for a very specific reason: people have to, right to apply liability to the real players, not the third party service providers and intermediaries. We have a long tradition in U.S. law, even outside of these safe harbors should be explicit that the adhesion to the real players instead of 3rd-party service providers are used. Randazza talks about how you leave your WiFi open and can open your house searched by the police if someone uses your router to transmit child pornography. But just because the police raid your house could improperly, it does not suddenly make it negligently, have an open router. Instead, it should fall on questions about the investigation and the decision to the House.
In fact, we keep seeing that even if someone uses open WiFi to commit a crime, while law enforcement agencies identify and track it can 're still looking for the person who is actually the crime. The fact that Randazza ignored them and basically says that, because you might get mugged, it 's negligence, is really disturbing.
Furthermore, Randazza stretches liability to ridiculous levels with some guilt by association:
The type of person to steal your car would be, probably the kind of person that other crimes (or just something silly) would undertake. So, if you leave your keys in your car, and someone takes it and drives it into someone's fence, you are at least partially responsible for the damage. If the car runs thief, who should pay for the damage? The fence owner or you? It appears that between these two parties, you would be more responsible than the fence owner. You would not say that the fence should owners have built a better fence, would you?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.
That is what is negligence: it is the law says: "You should really see that have come." If you do something careless, and carelessness that cost someone else money to pay the "tax negligence" - 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.
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 answer Randazza determined that the perspective of his people, the "don \ respects' t like the negligence claim," and suggests that it 's the law, which we re' does not agree, instead of his application of it. But I disagree entirely. As the EFF noted, there is no case law that an open WiFi is negligent and Randazza 's position here seems like a pretty big piece of the law, particularly with regard to § 230 safe harbors says. Randazza told me via e-mail that he fully understands and appreciates that people like me argue with him about it, but I think he should rethink its overall approach here. He also mentions that he makes clear to his customers that he does not represent them, if it will hurt the First Amendment, something (as already mentioned) he 's believed to help protect famous. But I 'd argue that he fails to bring the First Amendment reasons (and defending) the negligence claims.
The attempt to get the proper application of liability and blame others for actions they did not commit, while to shut down a communications channel, seems very much an attack on fundamental First Amendment principles. It 's an attempt to use legal pressure to end a form of speech. Yes, you can be certain that speech violation, but the vast majority of the talk on Open WiFi is not child pornography or injury strikes as Randazza. So, as a staunch First Amendment defender, I hope that he reconsider his position to bring such a negligence claim - and I hope that he reject the continued use of this highly questionable legislation.
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