Re: German court orders wireless passwords for all

[Dave Farber <dfarber () me com>]

Begin forwarded message:

> From: Rigo Wenning <rigo () w3 org>
> Date: May 19, 2010 9:16:40 AM EDT
> To: dpreed () reed com
> Cc: dave () farber net
> Subject: Re: [IP] Re:    German court orders wireless passwords for all

> Hi David, 
>
> the main argument of lawyers with some understanding of networking and 
> telecommunications is the following: 
>
> The whole legal construct relies on liability for omitted diligence. In 
> Germany, you can be liable if you haven't cleaned snow from the ways in front 
> of your door and somebody falls down and is injured. You always need a not so 
> distant danger, an obligation to care and a damage. So far the legal theory. 
>
> Critics (including me) now put forward that considering the Internet as a 
> danger is overstated as the Internet today is just part of our life and of the 
> average risk thereof. So considering the Internet a danger is already 
> stretching things a bit. 
>
> Secondly, we need an obligation to care in relation to the person damaged. The 
> person damaged is the music rightsholder. This means a person with a wifi has 
> to care for rightsholders. Hmmm... As a fallback, they may have applied the 
> theory of third party tort (interfering), where the third party can easily 
> stop infringement while it is extraordinarily difficult to get the infringer 
> himself. But this still sounds fishy as an obligation.
>
> The damage is (not so) obvious for music downloads...
>
> But wait a minute: They guy provided telecommunication services without fee by 
> opening his wifi. He is liable for the copyright infringement of third 
> parties. But why should he be liable if there are other people providing 
> telecommunication services commercially that are not liable? This will be a 
> serious legal question as the rule of law requires equal cases to be treated 
> equally... 
>
> I think the court made a turn here that it will not be able to sustain on the 
> long run without also making ISPs and telco operators liable and thus opening 
> the flood-gates for liability campaigns. 
>
> This is why many people (including me) wait for the opinion.
>
> BTW, the emotional reaction of many people against the decision is IMHO caused 
> by the fact that the court negatively sanctioned altruistic behavior (open 
> wifi). And altruistic behavior is one of the foundations of the Web to get 
> critical mass for economies of scale.
>
> Best, 
>
> Rigo
>
> On Wednesday 19 May 2010 02:25:46 David Farber wrote:
> > Begin forwarded message:
> >
> > From: "David P. Reed" <dpreed () reed com>
> > Date: May 18, 2010 3:41:46 PM EDT
> > To: dave () farber net
> > Cc: ip <ip () v2 listbox com>
> > Subject: Re: [IP] Re: German court orders wireless passwords for all
> >
> > This sounds like "if somebody discovers your keys in the car, takes the
> > car, and commits multiple murders, you will be prosecuted with the
> > likelihood of capital punishment, therefore leaving your keys in the car
> > should be grounds for prosecuting you for 'intent to commit multiple
> > murder'."
> >
> > Admittedly, you foolishly left the keys in your car, so it's possible to
> > construe you are creating the opportunity for unknowable and perfectly
> > reasonable ranges of all possible crimes.  Therefore you are intentionally
> > causing harm.
> >
> > Hmmm... we could use that legal theory to get people who don't use strong
> > passwords in their Facebook account reprimanded for "intent to let people
> > steal your identity and bully somebody to commit suicide".
> >
> > This is a good example of "pre-crime" a la Minority Report.
> >
> > On 05/18/2010 03:05 PM, Dave Farber wrote:
> > > Begin forwarded message:
> > > > From: Rigo Wenning <rigo () w3 org>
> > > > Date: May 18, 2010 2:41:46 PM EDT
> > > > To: David Farber <dave () farber net>
> > > > Subject: Re: [IP] Re:  German court orders wireless passwords for all



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