Kiss Your Open WiFi Goodbye if the RIAA Gets Their Way

Back in July 2003, someone who read the Wired article titled Giving Sharers Ears Without Faces wrote to our pal (and former boss) Cory Doctorow over at Boing Boing:

One issue that I have not seen addressed in the RIAA vs. P2P front relates to the potential for an unsupecting home PC user who just happens to have an open WiFi router being used by a neighbor to share files to get sued by the RIAA when their IP address shows up on the RIAA’s list. From the surveys I’ve done, there are a lot of open WiFi routers a file swapper could easily use to both serve and download files. So, is the RIAA going to have to shut down open WiFi to get its way?

A year later, Boing Boing ran an article titled Open WiFi for plausible deniability, which cover’s Micah Joel’s running of “an open WiFi network in order to give himself plausible deniability for bad acts that can be traced to his IP address”:

I’ve already composed my reply in case I receive one of these letters someday. “Dear Comcast, I am so sorry. I had no idea that copyrighted works were being downloaded via my IP address; I have a wireless router at home and it’s possible that someone may have been using my connection at the time. I will do my best to secure this notoriously vulnerable technology, but I can make no guarantee that hackers will not exploit my network in the future.” If it ever comes down to a lawsuit, who can be certain that I was the offender? And can the victim of hacking be held responsible for the hacker’s crimes? If that were the case, we’d all be liable for the Blaster worm’s denial of service attacks against Microsoft last year.

Well, we’re now a few years and two generations of 802.11 down the road, and the RIAA has finally done it. Cory writes:

The RIAA is asking a judge to rule that anyone who provides bandwidth should be responsible for all the activities of his users. This would doom open WiFi — and all other public networking efforts. But who needs anonymous speech, anyway? After all anonymity fuels irresponsible behavior, like founding the United States.

The RIAA just wants to stand up for freedom. First they convinced Russia to force licensing and 24-hour inspection of presses, now they want to eliminate anonymous speech here at home.

Record companies are quick to cite the First Amendment when someone suggests banning music with “suggestive” lyrics, but they’re not so big on free presses and anonymous speech. It’s like they love free speech, but not enough to share it with the rest of us.

It’s all part of their “rabbit hunting with Howitzers” legal strategy. It stems from the case of Debbie Foster, who was being sued by Capitol Records, a part of the RIAA cartel, for allegedly sharing copyrighted material on a P2P network. It turned out that she wasn’t the culprit; it was someone else using her account. The case was dismissed last year with a filing that gets pretty damned close to calling out the RIAA as extortionists — or at least as close as you can get outside of a TV or movie courtroom drama. Foster didn’t stop there; she filed a motion asking the court to make the RIAA compensate her for her legal fees and got that compensation in the form of a $50,000 award earlier this month.

This award creates a legal headache for the RIAA. As Listening Post puts it: “If the ruling stands, the RIAA will have to be much more careful about who it sues going forward, adjusting its scatter-shot approach to filing such lawsuits in order to avoid suing the wrong people”.

Hence the RIAA’s latest move: filing a motion for reconsideration that forces them to pay Foster’s legal fees, a key point of which is that they’d like a ruling that the owner of an ISP account is responsible for all activity on that account.

James “Smalltalk Tidbits, Industry Rants” Robertson makes a couple of interesting observations:

• He points to an Ars Technica story that says that the RIAA, in their motion, “lay out their disagreement with the judge’s reasoning while taking time to point out that the fees awarded far exceed any damages they could have recovered should their suit have been successful”, to which he quips “What, you mean there are risks in this strategy?”
• He points out that it’s not just the individual running an open node at home or the small cafe running an open node to get customers who are in trouble:
  

  …any entity that offered a net connection – Starbucks, a hotel, a municipality (etc) – would have a huge potential liability on their hands. They might well decide to just discontinue in order to not expose themselves. Yeah, there’s a world I want to live in.

Links:

• RIAA Declares War on Open WiFi (Boing Boing)
• RIAA Fights Back, Threatens Open Wi-Fi (Wired Listening Post)
• RIAA Appeals Attorneys’ Fee Award (Ars Technica)
• The RIAA Doesn’t Enjoy Reality (Smalltalk Tidbits, Industry Rants)