You Wouldn't Unlock a Car, Would You?

In recent months, I've seen several stories where adult entertainment companies have either filed suit, attempted to file suit, or just sent threatening letters to people for copyright infringement. Not surprisingly, more than a few people have quietly settled rather than fight the case. A recent settlement raised some disturbing issues, though.

According to this article, one of plaintiffs (John Doe 4) sued by Corbin Fisher agreed to a $10,401 settlement. He claims he was an "innocent infringer" and agreed to secure his wireless network to prevent anyone from using it to infringe. The breakdown of the settlement, according to Techdirt, is as follows:

* $200 for innocent infringement

* $200 for contributory infringement

* $1 to pay off the conspiracy charge

* $10,000 for the negligence of having an open router

I'm not sure what shocks me more: the idea that an open router is negligent or that it's $10,000 worth of negligence. It seems out of proportion with the damages. Corbin Fisher's attorney attempts to rationalize the negligence here. His argument is simple: If you leave your Wifi open and someone uses it for copyright infringement, then you should bear the responsibility for any injury done by a copyright infringer because you (not the copyright holder) should bear the burden of damages because you were in a much better position to prevent the damages from occurring (i.e. prevent someone from using your Wifi by locking it). The argument is persuasive until you spend even one second thinking about it, then it's utterly ridiculous.

I agree that leaving your Wifi open exposes you to certain risks and I personally keep my Wifi locked both for security reasons and because I don't want to risk an FBI raid because someone uses my network to download child pornography.

I also strongly agree with the theory that the person who was in the position to prevent the injury to another person should be required to take the appropriate steps and, if he doesn't, he, not the innocent injured party, should bear the cost of the injury. In his example, if you leave your keys in your car and if someone steals your car and then destroys a fence, you, rather than the owner of the fence, should bear the cost of replacing the fence because you were in a better position to prevent the destruction of the fence.

The problem with Mr. Randazza's opinion is that it assumes that an unlocked wireless network is inherently bad and people who choose not to lock their network are negligent in the same way that a person who leaves her keys in her car is negligent. He mentions that he chooses not to use a loaded gun analogy because it would be "overly melodramatic and hysterical. This isn't the first time that someone has tried to draw a parallel between piracy and cars. The MPAA's attempt to draw parallels between piracy and car theft struck a lot of people as ridiculous and spawned a lot of parodies, my two personal favorites being the IT Crowd and Futurama.

Furthermore, while I have yet to see anyone arguing that more people should leave the keys in their cars, the EFF has made a pretty solid argument for an Open Wireless Movement, pointing out that there's a legitimate need for widespread access to Wifi and that the potential benefits to the average user (free Wifi anywhere, in an ideal world) would more than offset the potential problems (slower connection and less security)...especially when steps could be taken to minimize those problems.

It's important to remember that there's no case law saying that an open Wifi is negligent and that this is just a settlement by someone who was probably in a fairly weak bargaining position and just wanted to make everything go away without being exposed for allegedly downloading gay pornography. It's entirely possible (and hopefully probable) that if this did to go trial, the idea of open Wifi as negligence would be laughed out of court...though courts seem to have less of a sense of humor than I would hope when the magic words of "intellectual property" come up.

That said, the fact that someone is even trying to make the argument of open Wifi as negligence is somewhat disturbing, since recent months have shown that a lot of truly ridiculous laws are passed when it comes to the internet, copyright infringement, and intellectual property. I understand that the entertainment industry has to make money in order to continue to create movies, music, games, etc and I also realize that piracy is a very real issue, but I don't like the implication that it's my responsibility to prevent third parties from committing copyright infringement.