US judge orders piracy trial to test IP evidence

[TaoPhoenix]

http://www.bbc.co.uk.../technology-19887765

"A landmark case in the US will test whether internet piracy claims made by copyright firms will stand up in court.

Such cases rely on identifying the IP address of machines from which content was illegally downloaded as evidence of wrongdoing."

(Grump: The US needs the BBC to tell us our news. /Grump)

Slashdot was all over the wireless wifi topic, but if I were the defense I'd be worried they didn't split the topic into what happens with boring ordinary landlines. I'll leave that to my betters: can a landline IP address do what the prosecution wants or does that get shifted and bundled too much?

[Renegade]

The landline doesn't really matter. The assumption is that most people use wireless Internet at home. Wired landline to the router/modem, then wireless to the computers. If it's not secured, anyone can use the connection. Just drive up to the place within wireless range, connect, and there you go. Kind of like what Google does.

[40hz]

There's enough legal precedent under the attractive nuisance doctrine that it could be fairly easily and logically extended to owning and operating an unsecured wireless access point. But that's under tort rather than criminal law. Under criminal law, the charges have to be "proven beyond reasonable doubt," whereas in civil actions, a simple "preponderance of evidence" is sufficient to win a judgment for the plaintiff. The rules for the admissibility of evidence are also stricter in a criminal proceeding than they are in a civil suit. Which is why the media industry is in no rush to pursue criminal charges as opposed to civil actions. They'd be held to much higher standards of both evidence and proof if they did.

In a criminal case, just owning the means used to commit a crime would not necessarily be a criminal act even if you were careless or irresponsible about who had access. (If you have a gun stolen or otherwise taken without your knowledge or consent, you're usually not able to be charged as an accessory if it was used to commit a crime.) As long as the "intent" wasn't there, there's usually no criminal culpability - except in an extreme case of negligence which resulted in bodily injury or death. And even then, it usually ends up in civil court. In the US "criminal negligence" is most often restricted under statute to cases involving deaths or injuries caused while operating a motor vehicle under the influence of alcohol or drugs.

Gonna be fun to see which way this one goes. I'm guessing the court is going to swing toward the defendants' argument this time around. But after this I think you'll see some serious hardening of attitude by the courts that will make it progressively harder for individuals to fight this sort of thing by saying they didn't know. And all it would really take to settle this nonsense once and for all is the passage of a law that legally requires owners to know they need to secure their WAP - or face possible legal consequences.

If you had installed a phone out on your front lawn - and somebody used it to repeatedly make threatening phone calls - after a certain number of times (like maybe 6?) you'd likely get into some sort of legal trouble for not making it difficult for a passerby to just walk up and use it. And few would argue that was an unreasonable requirement of responsibility.

I think, in the end, this is how it's gonna go for WAPs.

[Renegade]

If you had installed a phone out on your front lawn - and somebody used it to repeatedly make threatening phone calls - after a certain number of times (like maybe 6?) you'd likely get into some sort of legal trouble for not making it difficult for a passerby to just walk up and use it. And few would argue that was an unreasonable standard of responsibility.

-40hz (October 10, 2012, 08:30 AM)

Muahahahaha~! ^o^

You know where this is going!

The few. The proud. The RENEGADES~! (Defending anything from whatever!)

How is being generous and opening up your phone for others to use unreasonable? Shouldn't the police be tracking down the real criminals, rather than pursuing those kinds souls that try to reach out and do good by their fellows? It's YOU that's the victim here, and being victimized for your kindness no less! Do we punish people for kindness and generosity?


But, aside from pointing out the obvious and sinister criminality of things like sharing, caring, kindness, growing a garden, etc. etc., I think you right.


I think I need to atone for my sins of happy kindness today. Not sure whether I should strangle a puppy or drown a kitten...

Then again, I could probably atone for an entire month by axing one of those vile kindergarten teachers that are always teaching kids to share! Wonder if blowing up the Sesame Street set and crew would get me a month's worth of penance... And how much would Mr. Rogers be worth?

Mr. Rogers in a spoiler for a reason

Continued...

Hmmm... Maybe not so much...

Kids should be learning games like this!

There's enough legal precedent under the attractive nuisance doctrine that it could be fairly easily and logically extended to owning and operating an unsecured wireless access point...

...In a criminal case, just owning the means used to commit a crime would not necessarily be a criminal act even if you were careless or irresponsible about who had access...

...And all it would really take to settle this nonsense once and for all is the passage of a law that legally requires owners to know they need to secure their WAP - or face possible legal consequences...

-40hz (October 10, 2012, 08:30 AM)

That sounds well like it could be the beginnings of the criminalization of incompetence.

We don't condone/permit driving by incompetent drivers (or mostly anyways), but just to surf and email? What's next? Licensing people to use the Internet? (Kind of like how TVs are in the UK...)

While that may sound a bit ridiculous now, can anyone see how at some point in the future, it would begin to seem more "realistic". (I hate to use the word "reasonable" there.)

If the MAFIAA is involved, nothing will turn out well.

[40hz]

That sounds well like it could be the beginnings of the criminalization of incompetence.

-Renegade (October 10, 2012, 09:06 AM)

You say that as if it were a bad thing.
The only downside is how you'd ever manage to build enough jails to hold something like 50% of the general population if you did. (kidding....just kidding)

What's next? Licensing people to use the Internet? (Kind of like how TVs are in the UK...)

-Renegade (October 10, 2012, 09:06 AM)

It's coming. Not that I agree with it, but I think it's only a matter of time. Seriously.

[TaoPhoenix]

I'm undecided about which exact mechanism this goes through, whether it's "court victory and criminalize open wifi" or if they just do what the conspiracists were saying and "buy the court ruling" in their favor. Not that we've been slavishly adhering to the law lately anyway, but it gets harder to fight a law if it gets nice and crispy than if it's in the "grey zone". So it's like this is the obligatory first step, let's be cynical and say it goes in favor of the plaintiffs, then it gets appealed, which affirms, and the Supreme gang decides "not to hear" and so it becomes law-by-bench, maybe with a helpful law passed by Congress.

[TaoPhoenix]

The landline doesn't really matter. The assumption is that most people use wireless Internet at home. Wired landline to the router/modem, then wireless to the computers. If it's not secured, anyone can use the connection. Just drive up to the place within wireless range, connect, and there you go. Kind of like what Google does.

-Renegade (October 10, 2012, 01:08 AM)

It does matter, and I asked my question for a reason, because chunks of Americans don't have wifi. So you get a question like "do you have a wifi set up?" and if the answer comes back "no", where does that leave you? I turned OFF my wifi because I do all my computing from my desktop, so why do I need a wifi again if I only live in one room?

Nice Chewbacca attempt though.  

So I repeat, if someone has no wifi, is a landline IP address "close enough" to determine a user? Because except publicity "Streisand" problems aside, this isn't very far from saying "you watched a tv clip on youtube, and you had Reasonable Doubt that Cucumber2265 wasn't an authorized source, here's your fine."

Addenda: What I am getting at is that if you make it the *user's* burden to try to source materials, you get a whole lot of trouble reeeeeeeallly quick. And all because we can't separate copyright into "types". Look at the pictures we like to post. Look at the "recommend videos" threads. Basically, look at "Sharing" which is all of Web 2.0. I'm getting chills seeing the conflicting forces here. Going all Grade C Prophet, I remember very little of anything, but I distinctly remember about 1999 and 2000, at the Dot Com boom and crash, Y2K, early 9-11, that "all the tech has been done except minor updates on features." So even skipping the whole Mobile movement, and a couple new drugs, I was right. Once there is no world class innovation left, "we all just sit here staring at each other getting bored" and that's where we are now - "bored" = "IP lawsuits." ((Look at the accidental pun, Internet Protocol address lawsuits to protect Intellectual Property. Or if Apple gets involved, iP. )

Extra Credit: Do you know how *hard* it is to source something? Most men like a little pr0n now and then. It's usually framed to hell and uploaded to 5 sites. Can you imagine trying to find the original creator of that? Or if that makes you squeamish, even the cat pictures are almost impossible to source.

[40hz]

^I think it would be fairly obvious that a landline would probably be considered more than "close enough" considering it needs to be installed somewhere. And that location is not much open to debate unless you allow for somebody hacking a central station circuit at a telco.

It's also a moot point for most users since most WAPs (in the US at least) are connected to a physical landline or cable. So a landline is part of the equation in most circumstances.

The only time wireless comes into play is when somebody is arguing anybody can easily (debatable on both points) hack a wireless connection, and therefor the person who is paying for the connection it gives access to, shouldn't be held liable in the same manner they would be if they gave somebody physical access to their home or place of business in order to use their landline/cable directly.

So yeah...if wireless is "close enough" you can count on hardwired connections being seen as "even closer." 

[TaoPhoenix]

^I think it would be fairly obvious that a landline would probably be considered more than "close enough" considering it needs to be installed somewhere. And that location is not much open to debate unless you allow for somebody hacking a central station circuit at a telco.

It's also a moot point for most users since most WAPs (in the US at least) are connected to a physical landline or cable. So a landline is part of the equation in most circumstances.

The only time wireless comes into play is when somebody is arguing anybody can easily (debatable on both points) hack a wireless connection, and therefor the person who is paying for the connection it gives access to, shouldn't be held liable in the same manner they would be if they gave somebody physical access to their home or place of business in order to use their landline/cable directly.

So yeah...if wireless is "close enough" you can count on hardwired connections being seen as "even closer." 

-40hz (October 10, 2012, 09:53 AM)

That's why I brought it up, because these guys like "footholds". So if it's "just you" on a landline, I guarantee there's enough victims ... er... users who might one of these years fall into a really nasty law about "it's the user's fault". It's like they need the requisite number of preliminary pieces in place before they use the Trump card to seal the lockdown.

[40hz]

That's why I brought it up, because these guys like "footholds". So if it's "just you" on a landline, I guarantee there's enough victims ... er... users who might one of these years fall into a really nasty law about "it's the user's fault". It's like they need the requisite number of preliminary pieces in place before they use the Trump card to seal the lockdown.

-TaoPhoenix (October 10, 2012, 10:06 AM)

Yup. Spot on! That's pretty much the way it works from what I've seen.

But IIRC, I think they went after people with wired connections well before the issue of wireless came up. It was only after somebody testified they maintained an unsecured wireless access point, and argued "plausible deniability" in their defense that it became an issue for the IP trolls.

Don't forget, in the absence of a specific law or a 'generally understood and accepted standard or responsibility' (i.e. common law) there can be no legal liability or culpability.  If it's not an actual law, then there's no law to be broken. And in the absence of a violation of law, no enforcement action is possible either. And that remains true no matter how pissed off that may get some people. That's why there's so much effort to clear up legal gray areas like this one.

[TaoPhoenix]

Don't forget, in the absence of a specific law or a 'generally understood and accepted standard or responsibility' (i.e. common law) there can be no legal liability or culpability.  If it's not an actual law, then there's no law to be broken. And in the absence of a violation of law, no enforcement action is possible either. And that remains true no matter how pissed off that may get some people. That's why there's so much effort to clear up legal gray areas like this one.

-40hz (October 10, 2012, 10:44 AM)

I haven't forgotten, and that is what I meant by they are trying to put the pieces in place. Somebody discovered that there's benefits to be had by converting grey areas into black ones, then labeling all of the US as criminals until proven innocent.

Addenda: I have stayed away from torrents. I have watched youtube clips to my hearts content, but the minute I went to Sidereel (honeypot site?) and absently clicked "download" I got an ISP warning like 2 days later. That scared me because it smelled of the future.

[40hz]

Don't forget, in the absence of a specific law or a 'generally understood and accepted standard or responsibility' (i.e. common law) there can be no legal liability or culpability.  If it's not an actual law, then there's no law to be broken. And in the absence of a violation of law, no enforcement action is possible either. And that remains true no matter how pissed off that may get some people. That's why there's so much effort to clear up legal gray areas like this one.

-40hz (October 10, 2012, 10:44 AM)

I haven't forgotten, and that is what I meant by they are trying to put the pieces in place. Somebody discovered that there's benefits to be had by converting grey areas into black ones, then labeling all of the US as criminals until proven innocent.

Addenda: I have stayed away from torrents. I have watched youtube clips to my hearts content, but the minute I went to Sidereel (honeypot site?) and absently clicked "download" I got an ISP warning like 2 days later. That scared me because it smelled of the future.

-TaoPhoenix (October 10, 2012, 10:58 AM)

+1