I like how he tosses that out there as something other lawyers have said, and then says that he would only compare it to leaving your keys in your car. As though that negates his sensationalism.
I also wonder what his opinion is on wireless networks that are "secured" by not broadcasting an SSID, or by using WEP, which even the slowest computer can crack in less time than it takes to torrent a movie. Is that still negligent?
Furthermore, if he's in the business of actually making contributory negligence claims, why can't he cite a successful example, instead of relying on analogous case law from the 1930s, involving physical property instead of intellectual property? (The opposing viewpoint cites the Supreme court on the issues of contributory and vicarious infringement, and the 9th Circuit on a more recent case.)
But this is how arguing about the law so often works. It's not clear what the law should say in a new case, so we make analogies to cases where there's precedent.
The question falls into the general class of problems "If you provide the tools for someone else to break the law, do you have any responsibility when they do?" And that's a huge class of problems, with precedent both ways for various subcases. You are partially responsible if you leave a loaded gun lying on a park bench and somebody shoots someone else with it. You aren't partially responsible if someone breaks your window, picks up a piece of broken glass and goes on a stabbing spree.
It's further complicated, here, by the fact that it's possible to claim "it wasn't me, it was someone else stealing my wifi" when it was, in fact, you.
I know that's how a common law system works, and I'm not saying it's a bad thing. I'm just saying that, for someone who's been involved in hundreds of these suits, it shouldn't be hard to provide a more relevant or more recent analogy, preferably one involving intellectual property or computer crimes, or both. He should also be able to cite the statutes or rulings that provide the legal groundwork for his theory of negligent contributory infringement. (If the SCOTUS has already says that contributory infringement must be willful, what provides the cause of action against an unknowing enabler of infringement?)
His example of negligence in a case where there was a contractual business relationship that was not satisfactorily fulfilled doesn't seem very convincing up against a Supreme Court ruling that contributory infringement must be willful. It sounds more like a way to be on the losing side of a summary judgement.
The fact that the defendant can perjure himself is really never a good reason to invent a new offense.
