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FFH
Premium
join:2002-03-03
Tavistock NJ
kudos:5

Criminal vs Civil - proving an open WiFi doesn't get you off

Lots of talk about criminal negligence here. But most copyright infringement cases are civil and not criminal. And proving you have an open WiFi network won't get you off the hook in a civil proceeding, even if it might in a criminal proceeding.
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ISurfTooMuch

join:2007-04-23
Tuscaloosa, AL

1 recommendation

The standard of proof may be different, but there has never been a requirement that you have to prove your innocence. Now think about this for a second. Let's suppose that you were accused of downloading copyrighted material. Would you prefer to have had an open router or a secured one that got hacked? We all know that WEP is hardly above no security at all, but WPA and WPA2 can even be cracked if someone wants to put in enough effort, but good luck convincing a jury of that. So, when you go to trial, what is a jury more likely to believe: that you had an open router that someone connected to or that your secured router was hacked? Granted, it's less likely that someone will take the trouble to hack your router, but, if they do, you're royally screwed because the jury isn't going to believe you unless they happen to know how this stuff works. Odds are, they're going to be a bunch of people who have no clue and will believe whatever the plaintiff's lawyer says.

And that is one of the problems with using an IP as a basis to accuse someone of copyright infringement.


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

said by FFH:

Lots of talk about criminal negligence here. But most copyright infringement cases are civil and not criminal. And proving you have an open WiFi network won't get you off the hook in a civil proceeding, even if it might in a criminal proceeding.

Are you saying that having an open WiFi makes you guilty of copyright infringement? The burden of proof is still on the plaintiff to show that it was YOU sharing their material... not just that it was done on your connection.

Chubbysumo

join:2009-12-01
Superior, WI
Reviews:
·Charter
reply to ISurfTooMuch

you can go thru jury selection. Your accuser in a civil case is likely going to try and get people they feel would support their cause and be tech illiterate, whereas, you would be trying to get people that would support your cause and be tech literate. Jury selection alone would take awhile, and at some point the judge would intervene and say you are both stuck with what you have. Sadly, stupid people cannot, and will not, learn tech, and stupid seems to spread, so you would lose on that front.



FFH
Premium
join:2002-03-03
Tavistock NJ
kudos:5
reply to CXM_Splicer

said by CXM_Splicer:

Are you saying that having an open WiFi makes you guilty of copyright infringement? The burden of proof is still on the plaintiff to show that it was YOU sharing their material... not just that it was done on your connection.

Once the plaintiff shows it was done on your connection, in civil cases the burden switches to the defendant to prove they didn't do it.
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woody7
Premium
join:2000-10-13
Torrance, CA
reply to Chubbysumo

the copyright people don't want to get to the jury selection if they don't have to ..............................
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Crookshanks

join:2008-02-04
Binghamton, NY
reply to ISurfTooMuch

said by ISurfTooMuch:

We all know that WEP is hardly above no security at all, but WPA and WPA2 can even be cracked if someone wants to put in enough effort

WPA2 is secure, provided that you use AES with a good pre-shared key. There is an issue with WPS, but that's not a direct attack on WPA2, and it's easily solved by using a AP with latest firmware or (better, IMHO) buying an AP that doesn't support WPS. WPS was a disaster waiting to happen, but that's a separate discussion entirely.

Regarding WEP, around these parts Time Warner uses it on the leased routers they provide for their customers. They further set the WEP key to the MAC address of the router, followed by 14 zeros. There is no way to change these security settings on a Time Warner provided router, and they are ridiculously easy to spot, as they always employ a random four letter SSID. One wonders how long before Time Warner gets sued for this practice. I'd imagine it will happen after the swat team kicks Grandma's door down as part of a child pornography investigation.

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

Actually that would only happen if the defendant conceded that the IP address & date/time records absolutely identified their account. Since the only way a defendant could know this would be if they kept records themselves of their assigned IP addresses, no defendant would ever concede this.

The burden of proof is always on the plaintiff to prove their case against the defendant. How exactly will that 'proof' look when the Plaintiff's own expert witnesses state that there is no way to reasonably determine who was doing the actual sharing?


Chubbysumo

join:2009-12-01
Superior, WI
Reviews:
·Charter
reply to woody7

said by woody7:

the copyright people don't want to get to the jury selection if they don't have to ..............................

no, but if you keep your mouth shut, and retain a good lawyer, you will get there, or they will drop it. In civil suits, the plaintiffs rely on self incrimination more than anything else, and want you to slip up.

Chubbysumo

join:2009-12-01
Superior, WI
Reviews:
·Charter
reply to FFH

said by FFH:

said by CXM_Splicer:

Are you saying that having an open WiFi makes you guilty of copyright infringement? The burden of proof is still on the plaintiff to show that it was YOU sharing their material... not just that it was done on your connection.

Once the plaintiff shows it was done on your connection, in civil cases the burden switches to the defendant to prove they didn't do it.

not true, I would ask them to prove that it was my computer. Just because its on my connection does not mean it was my computer or me. An IP address only means that it was done on that connection, and nothing more. What about schools, and businesses? would they just blame the business owner for the doings of the employees or customers/guests?

JSM88

join:2000-12-20
Falls Church, VA
reply to FFH

big suprise that the Romney shill is also shilling for the corporations over individuals. Civil OR Criminal, the Courts are holding that an IP address alone does not constitute proof that the Internet subscriber has committed the acts associated with the address. Even if a civil case did go to trial and a brain-dead jury did award damages to the content corporation, the individual would still be entitled to a judgement notwithstanding the verdict throwing out the damages unless the plaintiffs proved, as a matter of law, that the acts connected to the IP address were in fact committed by the defendant.

Now, as far as all the posters saying this is a "new area" or "unsettled law" - nonsense. Go and read these decisions, at both the state and federal level. As noted in this latest case, even if they granted all of the other arguments by the content companies, Section 230, iron-clad, supreme court tested, settled law protects the individual from any negligence cause of action, civil or criminal. As this judge notes, while it specifically does not apply to IP claims, the negligence claim is NOT an IP claim, and therefore falls to Sec. 230.

To reiterate, Sec. 230 was written to allow the Internet to function - it IS Internet law, only those who think it gives the individual too much power over corporations want to change it, and they will not succeed.