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.

A few days ago, I came across a short story called Nanolaw with My Daughter. The premise was interesting: In a world where people were literally being nickeled and dimed with lawsuits, a father sat down and taught his daughter how to answer her own lawsuits. In a day, the daughter received over fifty suits, only a few over a dollar, and several dealing with copyright. It should have been ridiculous (you hum a song walking down the street, the copyright hold catches it on video and demands a few cents because of your infringement), but a couple of stories this week made it seem less so. First, there was a proposed bill that would make it a crime to embed a copyrighted Youtube video without permission. Second, Tennessee passed a bill that makes it a crime to share your entertainment subscription login information. Tennessee's governor supported this by "citing the large record industry presence in Nashville." The article mentioned that the bill was aimed at hackers and thieves who resell passwords, but made sure to mention a couples cases where college students share Netflix login info with everyone they know. Techdirt posted an interesting commentary (RIAA Wants To Put People In Jail For Sharing Their Music Subscription Login With Friends).

This bothers me for a couple of reasons. First, based on my understanding of how Netflix and other providers license content, the recording or movie industry isn't losing money if subscriptions are shared. Netflix pays a yearly fee for licenses (for instance, $30 million for Starz content). Period. Starz doesn't get paid more if Netflix has more accounts or less if they have fewer. In other words, Starz gets $30 million a year, even if everyone with a Netflix account shares their password with everyone they know. I assume that other companies license content in a similar way. So I'm a little unclear as to how the RIAA is claiming that sharing subscription info is resulting in lost revenue. At most, Netflix and Rhapsody are losing subscription revenue.

Second, why is this being criminalized? Looking over Rhapsody's terms of use, only the user can access the service. Netflix limits usage to members of the immediate household. Obviously, sharing login information violates the terms of use and could result in an account being terminated, in addition to possible civil liability. Furthermore, entertainment services already have protections in place to prevent massive password sharing. Rhapsody will only stream to one device at a time and Rhapsody to Go limits the user to three devices. Netflix only allows the user to have six authorized devices as well as the number of devices that can stream simultaneously (between one and four devices, depending on the plan). That alone would probably dissuade most users from sharing login information. It's all well and good to let ten of your best buddies watch their favorite shows and listen to their favorite songs for free with your subscriptions when it doesn't affect you, but when it means that you might not be able to use the service you're paying for, it's a lot less tempting.

Personally, I'm getting tired of hearing about how the recording industry's profits are down and how movie piracy hurts corn farmers. Like most people, I consume a lot of media and I'm a huge fan of streaming media. I subscribe to Netflix, Hulu Plus, and Rhapsody To Go and I come out ahead for doing it. In fact, since I subscribed to Rhapsody to Go at the beginning of this year, I haven't bought any music. I'm still buying DVDs, but I'm definitely spending less as Netflix increases their catalog. I still buy games and books, although I'm using the library more for books and I would happily pay a reasonable monthly subscription if I found a good streaming game service or if I could download all the ebook I wanted.

In short, I understand and accept that the entertainment industry has to make money to continue producing works. I also understand that consumers have to pay for content. However, just because the entertainment industry likes the model where the only way hear a song is to either listen to the radio for hours or pay $15 or more to buy the entire CD for one song doesn't mean that they can turn back time and recreate that model. Like it or not, today's consumers are accustomed to being able to either buy songs a la carte or pay a flat fee for all you can eat. If the RIAA's profits are decreasing because of this (and I'm skeptical as to whether they are), then maybe they should be grateful that they managed to get away with overcharging consumers for so many years and try to figure out how to make a fair amount with the current model. Personally, if I had to go back to the days of buying an entire album to get one song (assuming, of course, I could even find the album in a store), I would probably just stop buying music completely.