A great 1980s album. Thomas Dolby is an ooutstanding musician and geek – he was also recently in San Francisco, CA. S.F. Show
If you are wondering who this Steampunk looking fellow is, you are missing out on some really great music.
I believe we are in the “new” golden age of wireless communications. It spans the globe and enables elementary kids to carry “communicators” that Gene Roddenberry would not have imagined at this time.
Thank you everyone who took part in the WiFi Poll. Please if you haven’t already, take a moment to complete it.
Poll Results (8 May 12)
- A majority (approx. 50%) of you run your WiFi Internet connection secured since you installed it. No big surprise there.
- Approximately 19% of the poll respondents said they ran their WiFi “open” until they were notified by the ISP or Troll.
- Approximately 17% of the respondents said they ran it open, but didn’t know this until someone else informed them.
- Approximately 13% of the respondents said they knowingly ran their WiFi Internet connection “open.”
- Approximately 2% of the respondents said they didn’t have any idea if their WiFi Internet connection was open or secured.
So What Does This Mean And Who Cares?
I can’t give you an error rate for the poll results, but it appears a good portion of people have run their WiFi Internet connection open at one time or another. Nothing wrong with doing this from any legal or ethical stand point. The Trolls will beg to differ, but it really doesn’t matter. These cases are not going to a full trial on flimsy public IP address evidence their agents have collected. I provide this information to arm the Does so they can make an informed decision on what to do.
S.S. Tug Boat Troll
Negligence requires a legal duty to the Plaintiff or society – first and foremost. Mark Randazza agrees with this, but he uses a 1932 case to show that “duty” is a relative concept that changes with time and technological advances. Mr. Randazza has a well-known article on Torrent Freak (http://torrentfreak.com/), Are You Guilty If Pirates Use Your Internet? Lawyer Says YES.
In his article, Randazza cites a 1932 civil case (T.J. Hooper case) where a tug boat company was sued because it was negligent and did not have radios on board when the vessels sank during a storm (Plaintiff’s cargo was lost). Randazza states the court saw that there was a duty for the tug boat owner to protect the cargo and failing to have the radios made them negligent. At the time, radios were not mandated on the boats, but it was a universal practice. The radios would have enabled the boat to be notified of the storm danger, thus averting the loss. The main issue as stated by Randazza is there is some duty the accused was required to perform. In the 1932 tug boat case, the duty was a contract between the tug boat owner and Plaintiff for shipping the goods to the destination in one-piece. The court found that even if not mandated, the tug boat operators should have had radios, as it was such a “universal practice” for majority of the tug boats operating in similar situations at that time.
For the person who maintains a personal open WiFi Internet access point, there is no legal duty to the copyright owner of “Chunky Butts #2” or society to secure your WiFi connection. There is NO contract or agreement between the two parties (Open WiFi guy and Plaintiff), as there was in the Hooper case – Here is payment for services -Please deliver my cargo to its destination in one piece. By trying to use the 1932 ruling, Randazza claims a vast majority of WiFi Internet access point are run closed (secure) and thus it is a “universal practice.” Well as we can see from my limited poll, the practice is not that universal. I would venture the result of a large-scale poll would produce similar results. I really doubt you would find that running a WiFi Internet connection closed was a universal practice. He further goes on to states that it is common knowledge that if you leave you WiFi access point unsecure, criminals are going to use it to do a variety of illegal activities. Randazza states due to the amount of cyber related crimes that occur; you should know to secure your WiFi access point just like all those other reasonable people do. He claims that someone who “steals” your WiFi access is just as likely to use that stolen WiFi access to steal something else – his Plaintiff’s movies. A far reach in my opinion.
Yes it may be common practice for many people to run their WiFi secure, but there is nothing unreasonable or irresponsible to run it open. Randazza makes the point that if a thief steals your car because you left your keys in it, you are liable (negligence) for any damages he causes – crashes into another car for example. OK, not as dramatic as the John Steele claim that leaving you WiFi open is like leaving a loaded gun out in the open. It is still out in left field in my opinion. Let’s be honest, if there is a need for law to be enacted, it generally gets done (may take some time). I know some of our colder States have laws that make it illegal to leave your car running in your driveway unattended. They did this because thieves were stealing the cars while they warmed up and used them to commit other crimes. OK, now there is a legal “duty.”
The possible harm caused by running an open WiFi does not even come close to the car or gun parallel. In fact the greatest risk is to the person who chooses to this. Worst case is what Randazza cites in his article – an unauthorized person uses the open WiFi of a neighbor to send and receive child pornography. The police don’t check to see if the WiFi is open and just execute a search warrant on the innocent neighbor’s residence. No evidence is found and the police do determine the WiFi was “open.” Yes the innocent neighbor running the open WiFi ends up handcuffed and embarrassed for a time; but are there any charges filed against them by the State? NO. Why? because there is NO duty or otherwise societal obligation to secure the WiFi connection.
Another point to bring up in all this negligence discussion what Nick Ranallo brought up to respond to Randazza’s article – Federal Copyright Law is going to take precedent over any State claim of negligence. Why Copyright Negligence Won’t Fly
Preemption is a legal doctrine that essentially says that when state and federal laws cover the same topic, the federal law will trump (preempt) the state law, and a plaintiff will be barred from bringing the state law or common law claim.
In the context of copyright, the Section 301 of the Copyright Act is explicit about the scope of its preemption:
On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 17 U.S.C. 301(a)(Emphasis Added)
Between these two opposing view there is so much information to think on, that you can easily get lost. Being lost in all this legal gibberish is just what the Trolls want. It doesn’t really matter if the Trolls know that their arguments are weak and likely to be trashed in a trial. Why? Because for the overwhelming majority of these cases, there will be NO trials, NO default judgments, No depositions, NO forensic analysis, and only the eventual dismissal of the case. The only cases we are seeing proceed down the full trial path is the counterclaim suits filed by the Does (Wong, Abrahams, & Zwarycz). In these three cases, the Trolls have been doing everything in their power to get these cases dismissed. These weak claims and poor legal arguments are only designed to get the Does to pay the settlement demands.
What To Do After Notified
Now what should you do if you get notified by your ISP or a Troll that your public IP address was linked to possible infringement activity? Get out you pen and paper and start to document everything. Start with looking at your WFR to determine if anything has changed. Document all the settings and note things that have changed or unknown devices that have been using your Internet connection. Take screenshots and along with the notes, place them in a “just in case” folder. I would also take steps to prevent any future incidents from happening again. This could be enabling wireless security protocol (WiFi Protected Access 2) and/or MAC address filtering (“White” or “Black” listing). Taking these actions shows the ISP and the court (if it ever came to it) that you took steps once notified. It is certainly more action than Plaintiff or the Troll took to prevent any future instances of infringement on their part. It is also interesting to note that if Plaintiff or the Troll had sent out DMCA take-down notices as soon as IP addresses were observed, the Does and ISPs would have a better chance of preventing the continued infringement and documenting offending devices on the network. Almost seems like someone wants the activity to continue.
Now I must caveat this by saying in no way do you want to be telling the Troll any results of your analysis. We have seen time and time again that the Troll doesn’t really care if a neighbor abused you WiFi connection. In their view you are responsible and should pay up. Please take a read of the Randazza article and see what he thinks of “open” WiFi and how he will use it against you to obtain a settlement. The other Trolls, like John Steele have similar views, but Randazza appears more willing to go after default judgements. Keep the “just in case” folder up-to-date and give the Troll the Richard Pryor Response. Securing your WiFi Internet access may eventually become a law or even a universal practice one day – but today is not that day.