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There is a shovel in my yard, not locked up. If a person takes my shovel
without my permission, and uses it to kill another person, am I guilty?
I think not.
Perhaps the open relays operators are negligent (or lazy or whatever),
but the theft is being committed by the spammers.
The terms of art are 'contributory negligence' and 'attractive
nuisance'. If you leave your swimming pool unlocked, and a
neighborhood child invites his friends over for a swim (without
your permission) and someone drowns, YOU would definitely go to
prison in most jurisdictions I know of.
Those are indeed terms of art, but they are misapplied here.
"Contributory negligence" is a defense made against a plaintiff,
alleging an act or omission amounting to want of ordinary care on
the part of the plaintiff. The term would only apply in a complaint
brought by the operator of the open relay against the spammer: the
law might reasonably excuse the spammer because the open relay
operator didn't take steps to close the relay. However, as a
victim of spam, I can't make a claim of contributory negligence
against an open relay operator, since contributory negligence is
an act of the plaintiff (which would be me, if I were to make
the complaint).
"Attractive nuisance" applies to an inherently dangerous or
hazardous object or condition of property that might be expected
to attract children to play or investigate. Common examples are
discarded appliances, construction sites, firearms, and swimming
pools. Basically, the doctrine assumes that a higher level of
care is required for an attractive nuisance. However, the doctrine
doesn't apply here because (1) we aren't talking about children,
(2) we aren't talking about injuries to trespassers (spammers),
and (3) we aren't talking about a nuisance.
"Nuisance" arises from unreasonable, unwarranted, or unlawful use
by a person of his own (or public) property. It is not the open
relay operators who use the relays in any unreasonable, unwarranted,
or unlawful fashion -- it is the spammers. Nuisance may also arise
if the property owner fails to perform some legal duty, but I'm
not aware of any laws requiring that relay operators close their
open relays.
The law doesn't necessarily condemn those who simply act immorally
or improperly. For example, there is no law against being generally
rude and not telling the truth, except in special circumstances.
There is also no law against operating an open relay. Therefore,
it is counterproductive to characterize behaviours as "illegal" when
they are not, because it might lead someone to believe complacently
(and without justification) that appropriate rights and remedies
already are in place. To the extent that such rights and remedies
don't already exist, that helps to prevent us from creating them.
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