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”
Yes, it’s the fault of Hadopi that people are stupid. Makes perfect sense. Uh huh.
Re: It's not that simple.
Can’t speak to Napoleonic law but in my own legal tradition things like motive and awareness actually matter. The actual law is not nearly as rigid and unforgiving as some armchair moralists would have you believe.
Re: 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.
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.
Re: Intent
What if the person being held responsible didn’t install it and didn’t know what the program did? In this case, it was the husband, not the wife, who installed it.
Re: Re: Intent
The law was cleverly designed to ignore such considerations: the contract holder is held responsible for all traffic, irrespective of its knowledge/understanding/involvment in the alleged infringment.
Re: Re: Re: Intent
And the wife is responsible for collecting the 800€ from her husband, however they work that out.
Re: Re: Intent
What if the person being held responsible didn’t install it and didn’t know what the program did? In this case, it was the husband, not the wife, who installed it.
Yes, well that’s her story at any rate.
Re: Intent
She did not install the program or know that it was running.
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.
Re: Re: Intent
“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.”
How could she take action to remove software that she did not know was there?
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.
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.
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.
Re: Re: Re:2 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?
Re: Re: Re:3 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)””
Re: Re: Re:4 Intent
Sounds like Google should start suing. That would definitely reduce the number of bogus DMCA notices.
Re: Re: Re:5 Intent
As long as the 97% of valid DMCA notifiers also get to sue Google for damages. Deal?
Re: Re: Re:6 Intent
Keep pulling numbers out of your ass.
Re: Re: Re:6 Intent
sure, 97% of the valid DMCA notifiers that lodge the 3% of DMCA notices that are valid are welcome to take Google to court.
The the other 97% of DMCA notices (the invalid ones) the notifiers should be held to the current standard and be charged with purjery
Re: Re: Re:6 Intent
As long as the 97% of valid DMCA notifiers also get to sue Google for damages. Deal?
Deal, my a$$! Since Google’s not hosting ANY infringing content, it doesn’t have to pay damages to anyone!
Re: Re: Re:6 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.
Re: Re: Re:2 Intent
Why would you remove a programme that is not illegal to have installed? That is not illegal to possess?
As far as she was concerned, the illegal download of movies was spotted.
Re: Re: Re:2 Intent
“If she’s wasn’t sure that she could do that, then she could have found someone who could.”
She thought she did: her husband.
Re: Intent
Most people who share “illegally” do not intend to cause harm or loss. I know I never did. I never actively tried to re-sell or encourage others to do what I did.
Not paying for something is not harm or loss, only “removing” from someone is.
Re: Intent
“You downloaded a program in order to share media.”
Except for the fact that the person charged did no such thing, of course.
Agree with AJ
I have to agree with AJ. Hadopi is terrible legislation, but if they were smart enough to install and use a P2P program, they should be smart enough to uninstall it, or at the very least keep it from running at startup. Botnets are often installed, activated, and run surreptitiously.
Re: Agree with AJ
Consumers understand computers, applications, how to install them, how to get rid of them, and what all of the potential pitfalls are?
What planet are you from? Are you capable of accommodating Human visitors on your return trip?
Re: Agree with AJ
Why should she install a P2P programme? Have they been made illegal?
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…
Electricity
Anyone caught abusing electricity to infringe copyright should have their electricity cut off.
Re: Electricity
Nonsensical hyperbolic analogies = pirate platitudes.
Re: Re: Electricity
No. Nonsensical hyperbolic analogies is the copyright maximalists mainstream. Without hyperbole, you have nothing.
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).
Re: Re: Electricity
You mean like “home taping is killing music”, “download = lost sale” and “starving Hollywood artists”? That hyperbole?
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.
People who install botnets on their pcs, generally do so
by accident,
by clicking on a email, or an ad,
it runs in the backround,
its like malware ,its not supposed to be visible to a non expert user.
I presume she is fined because her name is on the isp bill as the customer .
Re: Re:
“I presume she is fined because her name is on the isp bill as the customer.”
As are many owners of machines infected by botnets.
Question
With so many people not knowing how to use computers, work at a help desk for a day, will ignorance clear out computers/tablets/etc from half of the country’s homes?
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?
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.
If technology ignorance is a crime, then there’s a good 90%+ of all people everywhere that are breaking the law. And that includes many if not all of the politicians and law enforcement.
It is generally accepted that a reasonable mistake of fact cannot be used to convict someone in the US.
Re: 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.
I expect the warnings named the material downloaded. The only way to continue to share, regardless of knowledge of program, is to still have those downloaded materials on your PC. She obviously did not remove the downloaded material she was informed about.
Re: 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?
😉
If your government decides your guilty no law will protect your innocence. They will move heaven and earth to convict you even if that requires breaking laws and ignoring your rights in the process
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.
stupid
I can’t believe courts of law are actually stupid enough to think the owner of something equates to a perpetrator.
You don’t even have to steal a car/phone/computer/gun, you just need to briefly operate it and BOOM, some unlucky fucker is guilty of your shit.
Way to go, guys.
RE:
I wonder how these legal arguments will play out in a few years when consumers start intalling routers that double as TOR exit nodes…
I would have to say, yes we are
I would have to say we are liable for what our technology does. To not have that, would open a real mess as far as placing liability in the case of vehicle failures, etc., as well as being unable to some day bring the MAFIAA to account for it’s millions of bogus DCMA take-downs.
Re: I would have to say, yes we are
Or course the problem here is blaming the person holding the subscriber account, not ignorance of the technology.
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.
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.
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…
Query...
HADOPI
Is that pronounced:
Had a pee.
or
Hey Dopey.
—