Are you guilty if pirates use your internet?

I was very impressed to see 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, 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.

4 thoughts on “Are you guilty if pirates use your internet?”

  1. As I see things currently, it’s not much more than scare/boast tactics in order to puff up a big display in order to try to push people who are on the fence into settling. So far, none of these specific cases have ever been brought anywhere close to the stage where any points in either article have ever been challenged.

    But I don’t see that happening(or any of the arguments in either direction) any time soon, since as many of us are aware at this point, why risk a good business model trolling discoveries for settlement funds(that the lawyer isn’t obligated to return if the judge severs the suit, mind you, since they’re agreed upon via private contract) by spending a decade in the court after court in state after state with even one of those people, completely negating and even digging far beyond your profit margin? No doubt local counsel in states that they’re not licensed to practice in would *love* to get a lion’s share of that money.

    Can you even imagine dragging five hundred of those cases at once as an attorney(and keeping in contact with several hundred counsel offices), much less the higher numbers such as twenty-three *thousand*?

    Now, here’s a funny thing. Tenenbaum and Thomas are the two big examples that they just love to parade around in front of people as scare tactics, but they always neglect to mention the ones where events tended to unfolds in even worse directions for the RIAA than simply a ridiculously costly and lengthy legal battle. How about we take a little trip back in time to two example cases, of Atlantic V Anderson, and Capitol Records v. Deborah Foster…

    Which just goes to show, that even if you think you might be against the wall, you can take the industry to task when it comes to it. And this is exactly what they don’t want to risk happening.

  2. If a person can be held responsible for what comes out of their network connection, I can frame anybody for any computer crime I’d like to pin on them, just by getting their IP address. Anyone got a home IP address for any of the copyright troll lawyers? What do you think they should get caught with, maybe child porn? Classified military documents? Detailed plans for the terrorist attack they were planning?

    You’d only need to do it once to someone important to put an end to this notion. Perhaps we should do it to the person who argues that you’re guilty if a third party does such a thing, that would be exquisite irony.

  3. So funny… Almost one year later, copyright troll lawsuits are spreading in Canada just as they have been in the U.S., and articles such as these and the related TorrentFreak article are getting new traffic.


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