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CXM_Splicer
Looking at the bigger picture
Premium
join:2011-08-11
NYC
kudos:2
reply to NetFixer

Re: Second Bogus Notice of Claim of Copyright Infringement

said by NetFixer:

said by dslcreature:

By taking action against a paying customer the ISP opens itself up to lawsuits for having been wrongfully accused.

ISPs are not free to act however they please without accumulating liability for their actions.

The ISP is required to deliver copyright violation notices to customers who have been identified by the copyright holder. The ISP is not making any accusations, it is the copyright holder who is making the accusation, the ISP is simply delivering the message.

It is the responsibility of the ISP to correctly identify the user... not the copyright holder. All the copyright holder does is deliver an IP address (and date/time) they believe is infringing. The ISP must correctly identify the person the message gets delivered to. Also, if an ISP takes action under the 5 strikes plan, they are certainly open to lawsuits.

The problem here is that neither MidniteRider nor efor are guilty of copyright violation (from what we read here at least) and yet BOTH could be sued by the MPAA and/or have their connections terminated and it is going to cost them a ton of money to do anything about it.
--
"I've been Romney-boated.... Somebody who will lie to you to get to be president, will lie to you when they are president." Newt Gingrich


Drunk
Premium
join:2010-11-16
Elizabethtown, PA
reply to MidniteRider

Yes, it is quite unwise to have an unsecured WiFi network. I certainly would never leave mine open. But doesn't anyone find it ridiculous the discussion we are having here? 10 years ago we wouldn't have even thought of something like this. Now we have to worry about getting our connection shut down, getting sued by the RIAA/MPAA, and getting raided by the police if someone uses our connection to make "terroristic threats" or download child porn (even if the connection was secured and they hacked it, I guess it doesn't matter). Are we not living in a police state? Is this Nineteen Eighty-Four?

Expand your moderator at work

CXM_Splicer
Looking at the bigger picture
Premium
join:2011-08-11
NYC
kudos:2

Re: Second Bogus Notice of Claim of Copyright Infringement

said by NetFixer:

In this particular case (the case of MidniteRider deliberately operating an open publicly accessible WiFi hotspot in violation of Comcast's TOS), the copyright infringement is actually irrelevant. MidniteRider's actions allow Comcast to shut down the connection at their discretion simply for the TOS violation. OTOH, MidniteRider's actions could also create liability problems for MidniteRider for intentionally facilitating copyright violations (and MidniteRider's own defiant words in this thread could be interpreted as that being the intent).

Sorry, but you have it backwards... it is the TOS violation that is irrelevant. The OP received an email notice involving a copyright infringement... not a TOS violation complaint from Comcast. If anything 'happens' as a result of this it will be a court case from the copyright holder... not any action from Comcast.

FWIW, Yes, it is obvious he is admitting to a TOS violation by running an open network. At this point (unless they are reading this) Comcast knows nothing about it. I would even go so far as to say that, without an 'illegal use' issue to draw attention to it, there is really no way they would ever find out or really care for that matter. Sure they could terminate his connection for the violation but would they really try to make an issue out of it... give up the income were it not for the headache of the copyright infringement? Just because he lets people check their email outside the walls of his premise?

The law is pretty clear cut on contributory infringement... you have to know about the infringement and provide assistance for the purpose of furthering the infringement. Running an open network doesn't qualify for that. Knowing about the infringement after it happens doesn't cut it.
--
"I've been Romney-boated.... Somebody who will lie to you to get to be president, will lie to you when they are president." Newt Gingrich


tshirt
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join:2004-07-11
Snohomish, WA
kudos:4
Reviews:
·Comcast

1 edit
reply to Drunk

said by Drunk:

... Now we have to worry about getting our connection shut down, getting sued by the RIAA/MPAA, and getting raided by the police if someone uses our connection to make "terroristic threats" or download child porn .....

Are we not living in a police state? Is this Nineteen Eighty-Four?

You know, You make it sound dramatic, that the POLICE are watching your every move, ready to arrest you guilty or not.

In reality, most people want the authorities to step in, when people take others property, when they make threats of violence against others (in particular, terrorist threats) or trade in child porn or other socially unacceptable items.

And why?
Because we've all seen our economy damaged by jobs and IDEAS being taken OFFSHORE without compensation, felt the effect of terrorism, foreign and domestic, and are disgusted by people in a position to stop crimes against children turning a blind eye to Jerry Sandusky et al.

Before you blame the police/nanny state, Blame those that put citizens wanting a decent life in a reasonably free country in the position of having to go to greater extremes to assure their safety from the few, the greedy and the self-serving.


NormanS
I gave her time to steal my mind away
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join:2001-02-14
San Jose, CA
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Reviews:
·SONIC.NET
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reply to CXM_Splicer

said by CXM_Splicer:

The law is pretty clear cut on contributory infringement... you have to know about the infringement and provide assistance for the purpose of furthering the infringement. Running an open network doesn't qualify for that. Knowing about the infringement after it happens doesn't cut it.

Actually, that appears to be true for "contributory patent infringement", but not so clear for "contributory copyright infringement":

»en.wikipedia.org/wiki/Contributo···ingement

quote:
The US has statutorily codified secondary liability rules for trademarks and patents; however, for matters relating to copyright, this has solely been a product of case law developments. In other words, courts - rather than Congress - have been the primary developers of theories and policies concerning secondary liability.

The U.S. Congress and the International community are trying to address this, but with major input from only those parties owning IP, the resulting proposals, ACTA, PIPA, and SOPA, are pretty ham-fisted attempts; rising (descending?) almost to the level of chopping the hands off of thieves.
--
Norman
~Oh Lord, why have you come
~To Konnyu, with the Lion and the Drum


NetFixer
Snarl For The Camera Please
Premium
join:2004-06-24
The Boro
Reviews:
·Cingular Wireless
·Comcast Business..
·Vonage
reply to CXM_Splicer

said by CXM_Splicer:

said by NetFixer:

In this particular case (the case of MidniteRider deliberately operating an open publicly accessible WiFi hotspot in violation of Comcast's TOS), the copyright infringement is actually irrelevant. MidniteRider's actions allow Comcast to shut down the connection at their discretion simply for the TOS violation. OTOH, MidniteRider's actions could also create liability problems for MidniteRider for intentionally facilitating copyright violations (and MidniteRider's own defiant words in this thread could be interpreted as that being the intent).

Sorry, but you have it backwards... it is the TOS violation that is irrelevant. The OP received an email notice involving a copyright infringement... not a TOS violation complaint from Comcast. If anything 'happens' as a result of this it will be a court case from the copyright holder... not any action from Comcast.

FWIW, Yes, it is obvious he is admitting to a TOS violation by running an open network. At this point (unless they are reading this) Comcast knows nothing about it. I would even go so far as to say that, without an 'illegal use' issue to draw attention to it, there is really no way they would ever find out or really care for that matter. Sure they could terminate his connection for the violation but would they really try to make an issue out of it... give up the income were it not for the headache of the copyright infringement? Just because he lets people check their email outside the walls of his premise?

I think that you are not familiar with the history of cable company internet service. There was a time (before the IPv4 address crunch) when it was a standard practice for cable companies who provided internet access to forbid the use of NAT routers by customers because they considered that to be theft of service. If you wanted to connect multiple devices to the internet using their service you were expected to pay them an extra monthly fee for additional IP addresses (and customers who were found to be using NAT routers would indeed be disconnected). That is the primary reason for the ability of residential/soho routers to clone a PC's MAC address to the router's WAN interface...that was a way to make the router look just like a single attached PC (the PC that the cable company had authorized to use the service). The TOS prohibition of open WiFi (or any other sharing outside the customer's premises) is just a continuation of that old practice. That TOS prohibition has nothing to do with copyright infringement; its purpose is to prevent a single customer from paying for a single subscription and then supplying their neighbors with the service for free (a service that Comcast might otherwise be able to sell to those neighbors).
--
History does not long entrust the care of freedom to the weak or the timid.
-- Dwight D. Eisenhower

CXM_Splicer
Looking at the bigger picture
Premium
join:2011-08-11
NYC
kudos:2
reply to NormanS

You (and Wikipedia) are correct, it is not codified the way it is for patents but case law is just as valid as written law until something actually is codified.

From copyright.gov:

quote:
There is another form of secondary liability in copyright law, "contributory infringement," which stretches back to 1911. As the Second Circuit Court of Appeals has explained, contributory infringement occurs where "[o]ne who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another."4 In general, the two elements of contributory infringement are (1) knowledge of the infringing activity; and (2) material contribution to the activity.

I do agree with your mention of hand-chopping... thats what you get when you ask the foxes how you should secure the hen house.
--
"I've been Romney-boated.... Somebody who will lie to you to get to be president, will lie to you when they are president." Newt Gingrich

CXM_Splicer
Looking at the bigger picture
Premium
join:2011-08-11
NYC
kudos:2
reply to NetFixer

quote:
I think that you are not familiar with the history of cable company internet service.

Oh I am familiar with it, and I agree with everything you said. I would even say that they would consider having your cable-less friend over to watch TV 'theft of service' if they thought they could legislate it.

quote:
That TOS prohibition has nothing to do with copyright infringement; its purpose is to prevent a single customer from paying for a single subscription and then supplying their neighbors with the service for free (a service that Comcast might otherwise be able to sell to those neighbors).

Agree here too; they would not look favorably on multi-family sharing of a single Internet account when several would otherwise be paid for. Especially if you were reselling their service, they would terminate you for that (if they found out). But it is also possible to run an open network without these particulars... where you simply have an Internet connection available to passers-by for web searches, email, loading maps, etc. It is fairly easy to detect leeches and/or torrenting (hell, you could even offer your connection only to iDevices and lock out Android/MS if you were an Apple fanboy). Certainly a person who offers an open Internet connection should take the time to administer that connection rather than just offer it willy-nilly, no questions asked. But I have never heard of an ISP terminating someones service just because they had/have an unsecured router. If you know of this happening, please tell me; I would be interested to hear about it.
--
"I've been Romney-boated.... Somebody who will lie to you to get to be president, will lie to you when they are president." Newt Gingrich


tshirt
Premium,MVM
join:2004-07-11
Snohomish, WA
kudos:4
Reviews:
·Comcast

said by CXM_Splicer:

If you know of this happening, please tell me; I would be interested to hear about it.

I do remember several threads here where someone got a letter, restricted access from comcast complaining about bot like behavior on their account.
the OP in those theads finally were convinced if was their open access which they cut of before CC shut them down.
Had they been less cooperative CC LIKELY would have cut them off.


dslcreature
Premium
join:2010-07-10
Seattle, WA
reply to NetFixer

said by NetFixer:

said by dslcreature:

By taking action against a paying customer the ISP opens itself up to lawsuits for having been wrongfully accused.

ISPs are not free to act however they please without accumulating liability for their actions.

The ISP is required to deliver copyright violation notices to customers who have been identified by the copyright holder. The ISP is not making any accusations, it is the copyright holder who is making the accusation, the ISP is simply delivering the message.

My comments are specifically about possibility of ISP taking action against the user (cutting them off) due to the number of notices received.

As has been in the news recently some large ISPs including Comcast will soon be taking actions against paying customers based on notices from third parties.

said by NetFixer:

In this particular case, the customer has publicly (and somewhat proudly) admitted violating the ISP's TOS/AUP by deliberately providing an open WiFi connection to persons outside the premises (what the outside party does with that connection is irrelevant). In such a case the ISP has every right to at the very least enforce the TOS/AUP. Customers are not free to act however they please without accumulating liability for their actions either.

My comment was with respect to legal liability only. Customers are not legally liable for ignoring their ISPs TOS. The ISP is liable for acting against the customer based on false accusations.

rody_44
Premium
join:2004-02-20
Quakertown, PA
Reviews:
·Comcast

As a comcast customer with a common name email address i get phishing emails all the time. its easy to figure out which ones are legit and which are not. the fake ones always have incorrect names or ip addresses along with asking to click a link. The fake billing ones never know my correct billing date. The legit ones leave a actuall comcast phone number.


reptiles

join:2012-07-16
reply to MidniteRider

What about secured wireless??

I have set a password on my wireless router (connected to Comcast HSI) but I often wonder how secure it is, and if I'm still responsible for what a hacker may access via my connection.

»www.securitynewsdaily.com/324-ho···tes.html



DarkLogix
Texan and Proud
Premium
join:2008-10-23
Baytown, TX
kudos:3

If its WPA2 AES and the key is atleast 16 alphanumeric charactors long your good.

if its WEP your in trouble.



NormanS
I gave her time to steal my mind away
Premium,MVM
join:2001-02-14
San Jose, CA
kudos:11
Reviews:
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·Pacific Bell - SBC

said by DarkLogix:

If its WPA2 AES and the key is atleast 16 alphanumeric charactors long your good.

if its WEP your in trouble.

How so? Referring to the question of responsibility. A closed, but unlocked door is still a legal barrier to access.

If you don't want your stuff stolen, lock your door.

If you don't want to be convicted of burglary, don't pass through closed, but unlocked doors.
--
Norman
~Oh Lord, why have you come
~To Konnyu, with the Lion and the Drum


graysonf
Premium,MVM
join:1999-07-16
Fort Lauderdale, FL
kudos:2

1 recommendation

I believe the assertion is that WPA is much more secure than WEP which can be cracked without too much trouble. All of which is irrelevant since the OP is deliberately running an unsecured hot spot.



NormanS
I gave her time to steal my mind away
Premium,MVM
join:2001-02-14
San Jose, CA
kudos:11
Reviews:
·SONIC.NET
·Pacific Bell - SBC

said by graysonf:

I believe the assertion is that WPA is much more secure than WEP which can be cracked without too much trouble. All of which is irrelevant since the OP is deliberately running an unsecured hot spot.

The question posed was about responsibility for actions of an actor who may defeat security. The "assertion" about using WPA did not address that question.
--
Norman
~Oh Lord, why have you come
~To Konnyu, with the Lion and the Drum


tshirt
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join:2004-07-11
Snohomish, WA
kudos:4
Reviews:
·Comcast
reply to graysonf

and more recent research shows WPA to be crackable also, however WPA2-AES with a complex key appears to be secure from common hackers.
The only truely secure machine is unplugged, otherwise ASSUME "they" are, or will shortly (8-12seconds after connecting) be trying to hack you.
security is about layers, and if each one adds a little complexity, most attacks will fail.


gnubeest
Gnu

join:2001-10-28
Nashville, TN

1 recommendation

reply to MidniteRider

Re: Second Bogus Notice of Claim of Copyright Infringement

I'd be less worried about people actually connecting to my access point and more concerned with the fact that I'm transmitting into the air unencrypted. There's still a shocking amount of data sent plaintext, and I can't tell you how many times I've been shopping somewhere online and never once see SSL kick in, despite advertised encryption assertions. I'm not the super-paranoid type -- I could care less if someone reads my boring iMessage conversations -- but my network probably pushes an immense amount of personal data on any given day that someone could use to steal my vast fortune. (I almost said that with a straight face.)

It's even sadder the number of gateways with unchanged default passwords that I find when I go out for walks. I occasionally poke my head in the odd one with my phone. All one has to do is flip the routing or nuke the DNS settings and the poor clueless owner is either yelling at their ISP or buying a new router. Some days I feel like people should be required to take a learner course before buying any network hardware.


mick_light

join:2012-07-21
Niles, MI
reply to MidniteRider

All wrong answers the fact that you are leaving open your WI-FI does NOT verify it was YOU that downloaded the material. Nor are you responsible for any recompense. Therefore the ISP nor the copyright holder has a leg to stand on. Unless Comcast is going to enable DPI (and thus prove conclusively it was you) and I doubt they will go to the trouble.

Some of you erroneous posters need to keep current on court rulings:

http://techland.time.com/2012/05/07/you-are-not-an-ip-address-rules-judge/
 

quote:
Judge Gary Brown of the U.S. District Court for the Eastern District of New York, “provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones.”
quote:
Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function – here the purported illegal downloading of a single pornographic film – than to say an individual who pays the telephone bill made a specific telephone call.
Stay current people and know your rights as a consumer. Even if the O.P. had enabled WPA2 or WPA PSK those can still be broken with BackTrack. So then what? Are you expected to be responsible for someone breaking into your WI-FI? I don't think that's how it works in the great U.S. of A.

To the O.P. throw the letter in the trash. If they haul you into court fire up BackTrack and hack some WI-FI's in the court room and show them to be the fools they obviously are.


JohnInSJ
Premium
join:2003-09-22
Aptos, CA

It is a violation of the TOS to have an open wifi. It is also a poor defense in a legal case. However, and this is the MOST IMPORTANT POINT, Comcast isn't going to sue the OP, they will after 5 (or 6?) of these letters simply cut off his interent for a year. Without trial. Without appeal. Because they can.

So personally I would not throw away the letter, I would secure my wifi.
--
My place : »www.schettino.us


CXM_Splicer
Looking at the bigger picture
Premium
join:2011-08-11
NYC
kudos:2

quote:
It is also a poor defense in a legal case.

Why? If the goal of the plaintiff is to prove that you are the infringer then how is this a 'poor defense'?

mick_light

join:2012-07-21
Niles, MI

1 edit

said by CXM_Splicer:

quote:
It is also a poor defense in a legal case.

Why? If the goal of the plaintiff is to prove that you are the infringer then how is this a 'poor defense'?

Exactly....its not.

That court case I posted is from a U.S. District court ruling in New York. Its not from some county judge that holds no weight in the court arena. A U.S. District judge does hold some clout and future precedence will be determined by his ruling on this matter.

Bottom line its not a TOS issue like one of the other posters said. Its a 'copyright infringement' matter. And a judge has made a ruling (and a very clear one at that) that can be used in future court cases of this type that basically "An i.p. does not equate to an ISP user". There is no need for any more discussion that's all that matters and it speaks volumes.

Throw the letter away and don't look back.

mick_light

join:2012-07-21
Niles, MI
reply to JohnInSJ

said by JohnInSJ:

It is a violation of the TOS to have an open wifi. It is also a poor defense in a legal case. However, and this is the MOST IMPORTANT POINT, Comcast isn't going to sue the OP, they will after 5 (or 6?) of these letters simply cut off his interent for a year. Without trial. Without appeal. Because they can.

So personally I would not throw away the letter, I would secure my wifi.

Speaking of securing something the ISP fails to tell you is it will slow down your surfing from wireless connections. So if the wife is in the living room on her laptop and the router is in the bedroom and each and every packet she is sending to and from the router has to be encrypted and decrypted....running unsecured is a viable option to speed up that connection. Securing a WI-FI signal can rob you anywhere from 5% to 30% of throughput.