Having An Open WiFi Does Not Ipso Facto Make You Liable For Negligent Infringement.

Here's the scenario:  You have an open WiFi (i.e. no password required), someone (maybe you, maybe not), uses that IP address to download a copyright work, someone (probably a copyright troll) sends a subpoena to your internet service provider and finds that this happened, you receive a letter from a copyright troll attorney that says in basic terms:  "You are a horrible person.  A copyright protected work was illegally downloaded using your IP address.  It was entitled something that included "hot", "wet" and a bodily orifice in the title.  You should be ashamed and if you pay me $3,000 now, it will all go away and your wife/girlfriend/scout troop/sunday school class will never know.  Otherwise, we can sue you for negligence because your WiFi was not protected and we don't even have to prove you did the download."

Maybe this comes as a huge surprise to you, maybe it doesn't.  However, will the negligence claim fly and allow the trolls to tag you with liability even if they can't prove you actually did it?  A couple of courts have said no.  Last week the U.S. District Court for Northern California in a case styled AF Holdings LLC v. John Doe and Josh Hatfield held that the mere inaction of not protecting your WiFi was not negligence because the defendant did not owe a duty to the plaintiff to take an affirmative action to protect the plaintiff's intellectual property.  In addition, the court held that this was still a copyright case and state law of negligence was preempted by the federal copyright statute.  And to further make a point, the court found immunity for the defendant under Section 230 of the Communications Decency Act.

So, it seems to be the trending opinion that you aren't strictly liable for contributory infringement for just leaving your WiFi open.  Seems right to me.

Viruses, Malware and Spyware, Oh my!

The recent McAfee debacle, which we detailed here, has once again brought into focus the problems inherent with protecting a computer or computer network from code designed to have a non-optimum effect on such computer or network.
Since the early 1970s, when a virus called Creeper was created and introduced into ARPANET, the precursor to the internet, anti-virus software and other means of combating viruses have been created. The code to combat Creeper was called Reaper and so, the dance began.
Viruses are probably better referred to generically as malicious code, which includes a broad range of things including attack scripts, viruses, worms, Trojan horses, backdoors, malicious active content, malware, adware, spyware and many other names.
Malicious code is designed to do a variety of things, including crippling or disrupting computer operations, stealing information, perpetuating pranks and allowing unauthorized intrusions.
As soon as viruses started creating havoc, people started looking for a way to combat them. Shortly thereafter, other people (particularly those who depended on some other people for computer resources or storage) begin to question such people’s response to the virus problem. Then, lawyers got involved (there’s always a silver lining) and suits were brought alleging that not enough was done to protect the computer resources against invasion, whether to steal information, create havoc, generally be a pain in the hard drive or a combination of all.
Although the law is still developing in this area, it is plain that the application of commonly applied negligence principles will require at least a reasonable amount of protection against intrusion and malicious code.
There are two basic approaches to combating such threats and they are generally referred to as “blacklisting” and “whitelisting”. Blacklisting is the most commonly used method and it involves developing a huge database of virus signatures and checking each transmission to and from a computer for such signatures and routinely scanning the storage areas of such computers for evidence of malicious code.  The database needs to be continually updated and entirely new stains of viruses must be recognized and negated after they are released into the wild.
Whitelisting takes the approach of initially scanning drives for their contents and then not allowing anything else to run on that computer unless it is specifically approved. This method does not depend on scanning after the initial scan and does not have to be updated. New virus strains are of no concern as they may reside on the computer but will not be allowed to execute.
You can expect that the issue will arise in some case as to whether one method is better than the other and if the other method is available, was it negligence not to employ such method?
In a subsequent edition, we will post an interview with CoreTrace, a local company that markets the “whitelisting” approach.