Ars Technica reported yesterday that a French court is allowing lawsuits to proceed against P2P software vendors under DADVSI copyright legislation. The article mentions as an aside that DADVSI requires people to “secure their own Internet connections, an apparent attempt to stop the ‘open WiFi defense’ from being trotted out in court.”
The “open WiFi defense” (more accurately, the open WLAN defense; “WiFi” is a trade name) takes advantage of the fact that MediaSentry (the RIAA’s investigators) can only trace file sharing to an IP address, not a particular user. Typically, the RIAA will file suit against the end user who had that address at the time. But if an open wireless network is behind that IP, the defendant can argue that someone else was sharing files. That strategy has worked in Denmark and Germany, where defendants won in court.
In the U.S., the open WLAN defense is more theory than fact. The RIAA has dropped cases against defendants who had open WLAN networks, but for multiple reasons. Teacher Tammie Marson, for example, had a wireless network, but also had in her house hundreds of student cheerleaders, any of whom could have accessed her computer. Francisco Zuleta had a wireless network too, but he also had a roommate, whose name matched the account name used in the file-sharing program . The defense didn’t work for Jammie Thomas, who claimed that if she had a wireless router, others could also have used it. That oddly hypothetical phrasing (“if” she used a wireless router? She doesn’t know?) and the RIAA’s expert testimony that the file-sharing traffic showed no evidence of a wireless router made the Thomas case a poor test case for the wireless defense.
The RIAA has argued that these defendants should still be vicariously liable. In the high-profile Capitol v. Foster case, the RIAA argued that the owner of an ISP connection should be responsible for any copyright infringement using that connection. If accepted, that would have made anyone with an open wireless network liable for any file sharing done on it. The court, however, rejected the RIAA’s theory of liability as “marginal and indisputably untested.”
Others have argued against open WLANs (or for liability for having an open wireless network). The FBI occasionally complains about open wireless networks, and the Department of Homeland Security has suggested that these networks should be regulated. India has considered making open WLANs illegal. The county of Westchester, N.Y. passed a law requiring businesses to secure their wireless networks, which effectively outlaws open business WLANs. And, of course, ISPs may forbid sharing a connection over open wireless, or even disconnect users who do.
France doesn’t look much like a trendsetter here—it still heavily regulates cryptography, for example, despite relaxing its laws in 1999—but as far as I’m aware this is the first case of a country passing a law that creates liability for running an open wireless network.
