Hadopi Strikes Again: Net User Fined For Not Understanding How A Program Installed By Someone Else Works

from the ignorance-of-the-technology dept

As we’ve reported, France’s “three strikes and you’re out” law, known officially as Hadopi, has been a joke from start to finish. For example, the law’s first victim was convicted because his wife had downloaded some songs, while the law’s first suspension was cancelled for technical reasons. Despite these setbacks, and a change of government, France is persisting with this benighted scheme, and Numerama brings us the latest installment of this uniquely French farce (original in French.)

It concerns an Internet user whose husband used the P2P file-sharing program eMule to download several films. He was spotted doing so, his wife received the first warning under Hadopi, and he stopped downloading forthwith. Unfortunately, he left the eMule program on his wife’s computer, and every time she started it up, it continued to share the films already downloaded. That fact was spotted again, and the owner of the PC in question was eventually taken to court. Despite her protestations that she was unaware of eMule continuing its filesharing activity, the court was unimpressed, she was found guilty and fined 800 euros (although the fine was suspended.)

Leaving aside the rights and wrongs of this particular case, it does raise an interesting issue. It is generally accepted that ignorance of the law is no defense, but what about ignorance of the technology? If you don’t understand what your computer is doing, are you really to blame when it does something illegal without any involvement from you? And if you are, does that mean that all the people whose computers get taken over as part of a botnet are responsible for the damage it causes?

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Comments on “Hadopi Strikes Again: Net User Fined For Not Understanding How A Program Installed By Someone Else Works”

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56 Comments
PaulTsays:

Re:

For not taking into account that people are stupid, yes. The fact that most people don’t know shit about operating a computer or computer security, and that multiple people with wildly differing levels of knowledge could be using the same machine independently despite sharing some software. these simple facts should have been taken into account during the law’s design.

As most people noted here when this was first proposed, but morons were too busy calling us names and accusing us of being pirates to take notice of reality. Again.

AJsays:

Intent

I would argue the answer is intent. You downloaded a program in order to share media. You knowingly installed it, and were knowingly using it. The fact that you didn’t know how to correctly uninstall it is your own fault. In the case of a botnet, you typically have no idea how or when it was installed, or that you even have it in the first place. You had no intent to cause harm or loss, and you weren’t negligent because someone else had to break the law to infect you, therefor I would think you shouldn’t be held accountable.

pixelpusher220says:

Re: Re: Re: Intent

I’m assuming asking her husband “Honey, why did I get fined $800 dollars for our computer?”

wasn’t an action she considered ? Seriously if I got fined 800 for something about my computer, it doesn’t take a rocket scientist to understand that if I make no changes or don’t verify that changes were made to rectify the problem…it would likely happen again.

Yes she doesn’t understand the technology, but clearly the husband did and she was fully able to ask him about the issue.

kogsays:

Re: Re: Intent

“The article states “his wife received the first warning”. If she received a warning, and took no action to remove or otherwise verify that the software was removed, then I would argue it’s her own fault”

she did take action. she stopped download films, which I’m sure she though was the issue the warning was trying to address. She just didn’t realized that even if she wasn’t actively downloading she was still connected and uploads could happen.

AJsays:

Re: Re: Re: Intent

Look; I don’t think it’s exactly fair either, but if I were to get a “warning”, telling me that I’m breaking the law and/or that I was going get into trouble for something on my computer, then I would be damn sure it’s completely removed from my computer. Obviously she didn’t do that. Maybe her husband say, “yeah, I got rid of that shit”.. and she didn’t know it was still there, I get that. But at the end of the day, it’s her responsibility to make SURE it’s gone. If she’s wasn’t sure that she could do that, then she could have found someone who could.

Josh in CharlotteNCsays:

Re: Re: Re: Re: Intent

Does the same thought process apply to other areas?

For example, sending bogus DMCA notices. If a copyright holder is running a system, or paying someone else to do so, that sends out thousands or millions of bogus notices, are they liable for the costs and damages to ISPs and service providers that have to deal with them?

AJsays:

Re: Re: Re: Re: Re: Intent

“Does the same thought process apply to other areas?

For example, sending bogus DMCA notices. If a copyright holder is running a system, or paying someone else to do so, that sends out thousands or millions of bogus notices, are they liable for the costs and damages to ISPs and service providers that have to deal with them?”

IANAL But; It appears it does.

“”Those injured by misrepresentations in DMCA takedown notices or counter-notices are entitled to bring suit and recover actual damages, as well as costs and attorney?s fees. 17 U.S.C ? 512(f)””

John Fendersonsays:

Re: Re: Re: Re: Re: Re: Re: Re: Intent

“97% of valid DMCA notifiers”

Again with the 97% figure. That number comes from Google saying they reject 3% of requests — but Google doesn’t investigate whether the claim is valid (as in, they don’t determine if the one making the claim holds the copyright or if the one the claim is against has violated copyright). The rejections their talking about are due to technical reasons — the claim wasn’t properly completed and filed.

These number in no way indicate whether or not there was actually a copyright violation. They only indicate that 97% of the time, someone who claimed such a violation filled in the form properly.

PaulTsays:

Re: Agree with AJ

“they should be smart enough to uninstall it, at the very least keep it from running at startup”

You know how I know that you’ve never worked tech support for domestic users?

Besides, remember this is 2 different people we’re talking about here. The person “smart enough” to install the software was not the person who was ordered to stop downloads.

“Botnets are often installed, activated, and run surreptitiously.”

Yes, and if the average end user was that smart, they wouldn’t be running, would they? Yet, here we are…

That One Guysays:

Re: Re: Electricity

Oh, but no-one is more practiced at hyperbolic analogies than copyright maximalists.

Watch as they insist that a single song, when pirated, is suddenly worth thousands in ‘lost profits/damages’, that piracy is going to destroy the music industry and creativity itself(eventually, I mean they’ve only been making that claim for several decades now), and that piracy is costing them more on a yearly basis than than some entire countries make in a year(despite of course making record profits on an almost yearly basis).

PaulTsays:

Re: Re: Electricity

“Nonsensical hyperbolic analogies = pirate platitudes.”

So, the morons who spend their time trying to conflate copyright infringement with car theft, shoplifting, even rape (yes, some idiots have done that here) and pretend that movie piracy is losing more than the US’s total GDP are actually pirates themselves?

Their dishonesty knows no bounds, does it, unlike most of us here who are not pirates and simply want a reasonable copyright system that isn’t beholden to a few legacy corporations at the public’s expense.

Anonymoussays:

Computers are complicated enough today that many experts tell you a computer is no longer secure once it has been on the net. Reinstalling the OS is no guaranty you’ve removed malware or anything else. Couple this with the NSA’s known penchant to infect the BIOS, routers, and graphics cards, and where do you draw the line on knowledge and what you should have done.

Much of banking is now requiring you have a separate computer for financials that doesn’t get on the net beyond the secure programs to do those financials. Failure to set up an independent workstation sets you up for the possibility that banks will not refund you stolen funds through cybercrime.

Computers today are complicated enough that you will never understand all the workings of a computer without being able to access propitiatory programs to see what they do in code. Even if you were able to do that, exactly how many of us percentage wise are programmers to understand that?

Rich Kulawiecsays:

Interesting questions

” If you don’t understand what your computer is doing, are you really to blame when it does something illegal without any involvement from you?”

Julie Amero was — although that case was clearly an enormous travesty of justice.

“And if you are, does that mean that all the people whose computers get taken over as part of a botnet are responsible for the damage it causes?”

That’s a question we’ve wrestled with since the rise of the botnets over a decade ago. On the one hand, everyone should be responsible for what their systems do to the rest of the Internet. On the other hand — as we’ve seen — most end users are defenseless against the attacks used to construct botnets, thanks to a combination of weak operating systems, insecure applications, and worst practices in computing. So we can’t really hold 300 million people responsible for this — that’s just not practical.

I think the people to hold responsible are network operators, because they have the technical savvy to observe what’s going on (non-obtrusively, by the way, this doesn’t require DPI) and to mitigate it. They have the staff and they have the money. They’re also the ones who complain when they’re targeted — so it’s their responsibility to ensure that they’re not the source of systemic, persistent attacks on others. (Just about everyone will emit isolated, transient attacks: there’s no way around that.)

But both of these questions have no easy or perfect answer. And they’re going to get more complicated if the IoT takes off, because the security in that space is even worse than the security on mobiles and that’s even worse than the security on desktops/laptops.

IrishDazesays:

Re:

While that may very well be a commonly generally-accepted belief, it’s simply not true!

In reality, ignorance of the law is not an acceptable defense when charged with or tried for breaking the law. In reality, being mistaken in a matter of fact is also not an acceptable defense when charged with or tried for breaking the law.

In reality, the best that either ignorance or mistaken-ness of fact will bring a defendant is a reduction in the severity of penalty if convicted (i.e. either a reduction in fine or a reduction in time to be served).

IANAL, but I am certain this isn’t a recent development.

IrishDazesays:

Re:

Unless, of course, the husband copied them to another location (say, a [Movies] subdirectory) instead of, say, MOVING them?

Say there’s some Hadopi requirement that the warn-ee delete the offending files (I have no idea if there is or not). I can totally see the wife deleting ABC Movie from the [Movies] subdirectory and thinking she’s taken the required action, having no freaking clue there’s another copy of ABC Movie in a [Share] subdirectory somewhere else on the hard drive.

Because no one who downloads video files makes copies to another location, all renamed per personal organization preference, right? Because everyone who downloads video files just plays them all from the [Share] subdirectory, right?

­čśë

Roger Strongsays:

Ignorance of the Law

It is generally accepted that ignorance of the law is no defense

This makes me wish they’d bring back a 1970s TV game show from here in Canada, called “This Is the Law.”

A short vignette would be shown – ending with an arrest – and panelists would have to guess what law was broken. Some times they’d have to guess the second law broken – and it might have been the arresting officer that broke it. Or the panelists would be shown an actual court case in storyboard format, and they’d have to guess how the judge ruled. The panel usually included at least one lawyer.

Boston civil-liberties lawyer Harvey Silverglate estimates that the average person commits “Three Felonies a Day” because of vague laws.

I was once in an on-line debate about where bicycles should be ridden – against the curb, in the right rut, in the center of the lane, etc. Finally some of us went to two police stations in the same city to ask. And got three different answers. With one officer stating that he’d ticket someone for taking a second officer’s advice.

Ignorance of the law is no defense in court, but it is outside the court in the real world.

LewisVsays:

Users

Learn how to manage your own computer. You are responsible for what is on your computer. It doesn’t take a rocket scientist. Or a degree in computer science. Yes. Botnets and malware are the exception. However, the wife was already aware of the installed software from the first warning notice. Her first failure was blindly letting the husband install something on her computer without understanding what it was, or the responsibilities involved in using or removing the application. They’re both to blame. Although, for fun.. I think the wife should take the husband out back to the woodshed and jog his memory with a 2×4. And make that a youtube moment.

John Fendersonsays:

Re: Users

“Her first failure was blindly letting the husband install something on her computer without understanding what it was, or the responsibilities involved in using or removing the application.”

Generally speaking, I don’t think that trusting your spouse can legitimately be called a “failure”.

“I think the wife should take the husband out back to the woodshed and jog his memory with a 2×4.”

Now that can legitimately be called a failure.

PaulTsays:

Re: Re: Users

“Generally speaking, I don’t think that trusting your spouse can legitimately be called a “failure”.”

Trust your spouse = bad. Potentially deadly assault with a weapon by your spouse = good.

It’s no surprise that maximalists can’t deal with the reality of the marketplace if this is how they think at home…

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