Are you guilty if pirates use your internet?

I was very impressed to see TorrentFreak.com write two articles entitled, “Are You Guilty If Pirates Use Your Internet? Lawyer Says NO,” and “Are You Guilty If Pirates Use Your Internet? Lawyer Says YES,” respectively.

Up front, I commend both attorneys Randazza and Ranallo for their contributions to these articles. Too many people are falling prey to these bittorrent lawsuits, and it is about time some on each side voice their opinions.

In short, my take on the two articles. Starting with the “NO” article found here, I thought Ranallo’s brief was well written, but it felt, well, brief. As far as I was concerned, while I certainly commend attorney Ranallo for his well written opinion (and for putting himself out there), the article was significantly lacking as far as what is actually going on in these cases. In addition, he COMPLETELY glossed over discussing DIRECT INFRINGEMENT which is what 99.999% of you are accused of. Unlike the 1932 tugboat case referenced in Randazza’s opposing article (“YES”), there has grown some relevant case law in the various severances and dismissals that have already happened BOTH LAST YEAR AND THIS YEAR.

For example, joinder. Many courts have held that it is improper to sue multiple defendants in the same lawsuit (e.g., Plaintiff v. Does 1-500) who did not take part in the same torrent swarm or who did not download the same torrent file. On top of that, EFF.org has been screaming “personal jurisdiction!” since these cases started showing up, and they are correct. For the most part, many (if not most) defendants who are sued DO NOT LIVE IN THE STATE IN WHICH THE LAWSUIT IS BROUGHT, (and bringing a bit of current law from the 2nd District [not binding on other courts] into the mix,) NOR ARE MANY OF THE LAWSUITS BROUGHT IN THE STATE WHICH IS THE PLAINTIFF’S PRINCIPAL PLACE OF BUSINESS. In short, these cases suffer because plaintiffs sue defendants in the wrong court and thus in a number of cases, there is no personal jurisdiction over the putative defendants.

There was so much more that was missing from Ranallo’s brief, but I suppose he was most concerned about just stating basic copyright law rather than fighting our side of these bittorrent cases. For example, he completely missed the high likelihood of a defendant succeeding if a digital forensics expert (paid for by the plaintiffs and/or their attorneys) examines a defendants computer and finds 1) no infringing file, and 2) no spoliation [formatting/wiping] of evidence after having notice of the lawsuit. People seem to gloss over that one too. In short, if a defendant didn’t do the crime, they shouldn’t do the time (here, paying the plaintiff their settlement amounts). These topics often don’t get discussed in the context of these lawsuits because so far, they have not been going to trial.

Now for the “YES” article found here. In short, Marc Randazza brought forth a well-written viewpoint that internet users who do not lock down their internet connections (e.g., with WEP or WPA2 encryption) are negligent and they deserve what comes to them through their ignorance. In short, the negligence theory as applicable to these cases states that an internet user 1) has a DUTY to lock down their internet connection [so far not true], 2) the internet BREACHED that duty by leaving his wi-fi router “open” (e.g.,without a password), 3) because the internet user did not lock down his connection, he CAUSED the plaintiff’s damage [again, not true], and 4) whether and how much the copyright holder suffered DAMAGES from the internet user’s lack of a secured wi-fi connection.

In short (and in response), the negligence argument assumes there is a DUTY to lock down your wireless access point (as noted). As a side note, as far as a duty is imputed to internet users, I’ve seen a few plaintiff attorneys argue that some ISP TOS agreements now require users to put a password on their wi-fi routers, but I have yet to see any proof of these myself. Plus, as far as I know, there have been NO court cases indicating that there is a DUTY to lock down one’s wi-fi access point.  As far as imposing a duty where none existed in the statutes, citing back to a 1932 tugboat case is a stretch at best, but point taken. We will see whether the courts impose a duty to lock down an internet user’s connection. Then again, if that ever becomes the case, then routers will come with WPA2 encryption active as the default setting with custom passwords, especially since the older forms of encryption can be cracked by anyone knowing how to look up “WEP cracking” on Google. If this ever becomes the case (and it would be a dark world if we were not permitted to share our connections with others, note EFF’s Open Wireless Movement,) we’ll have a fun time joining the ISPs as defendants because last I checked, it is their technicians and not the computer illiterate subscribers who set up routers in the first place.

In sum, two good and well written articles.  Do either cover the topics which relate directly to the copyright infringement lawsuits currently pending?  Not really.  Copyright infringement has more of a dry way of looking at whether an internet user is guilty of copyright infringement, and neither side addressed those issues.  That being said, it was still fun reading the articles and no doubt they will attract a lot of attention over the coming weeks.