Negligence and Open Wifi in Torrent Cases Debate

In the wake of this recent legal development, Torrent Freak has published an open debate over the issue of negligence claims in copyright infringement cases involving open wifi networks.

I provided the pro side of the debate here.

Nick Ranallo provides the con side of the debate here.

5 Responses to Negligence and Open Wifi in Torrent Cases Debate

  1. [...] Negligence and Open Wifi in Torrent Cases Debate. Torrent Freak has published an open debate over the issue of negligence claims in copyright infringement cases involving open wifi networks. … Read this article: Negligence and Open Wifi in Torrent Cases Debate « The Legal Satyricon [...]

  2. Harry Mauron says:

    Hackers/pirates are as foreseeable as bad weather on open water? I can’t wait for the suit against you when the guy who steals your OnStar’d car runs over my dog.

  3. Marc doesn’t come out and *say* he’s using the Hand formula, but he’s talking about Carroll Towing and I think that’s an appropriate case here.

    Locking your WiFi is pretty low cost–generally just the opportunity cost of learning how to do it and the time of setting it up. Usually it doesn’t require further financial investment. That B is pretty small, almost negligent. The Onstar–I have no idea, but I can’t think it’s as cheap.

    The L with an open WIFi is potentially unlimited–how much illegal stuff could someone download over time? The Onstar L could be pretty large too, but I think it’s more finite, unless we get into the truly fantastic.

    The P? I’d have to be speculating. I have no idea what the reasonable person would know about WiFi and pirates. But I’d bet that either the owner or someone who set up the network for the owner–an agent for the owner–probably knows about this danger. Onstar–I haven’t heard about that happening regularly, but maybe it does.

    I’d also note that as a matter of custom, people tend to lock their WiFi. I think more people lock their WiFi than lock up their home.

    So on WiFi we have a very small B, a moderate P, and an infinite L, and custom.
    On Onstar, pure speculation on my part, but it seems we have at least a moderate to very costly B, a fairly low P, and a sizeable but likely finite L, and no custom.

    I’m on Marc’s team.

  4. Guest says:

    I think, as a practical matter, if a case like this ever went to trial, a significant portion of any jury would not be receptive to the notion that failing to lock up your wifi is “unreasonable.”

  5. andrews says:

    I’m not sure that I owe a duty to Randazza’s client not to have an open wifi. Certainly the harm to his particular client is less foreseeable than was the harm to Mrs. Palsgraf.

    From here, I see securing the wifi to be akin to building a fence. If I have a lot of rocks in my yard, it is foreseeable that a kid will venture into my unfenced yard and throw one. But at your particular car, no. And it is not considered negligent not to have a kid-proof fence around every yard.

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