Now whether or not you agree or disagree with it, (Some of the ISP are using differnt techniques to implement it), I was wondering about the legality of it.
I’ve been reading on the Internet and it seems to me since the ISPs will just add it to your agreement that you must comply to get their service, it seems to have nothing to do with the law, but rather a simple contract.
On the other hand I know you can’t contract to do something illegal.
This part seems fuzzy to me as it seems you’re guilty till you pay to prove innocent and if you read about Google and DMCA you will see companies are just sending thousands of bot driven DMCA notices, a lot of them completely false. And since they are bot driven no threat of perjury applies like the act origianlly intended. At least so far, that’s what the court said.
I would just like to ask if anyone sees any actual “legal” issues. Whether or not this is right or wrong, is for another question. I would just be interested in what factual legal issues may arise.
First - terms of service. I assume anyone can take an open-ended contract like DSL service, and say “here’s our new terms. If you do not agree, you are free to cancel.” The only restriction might be if it were a monopoly service by government mandate.
As a private company, ther are no “civil rights” or “innocent until proven guilty” they have to obsrve. They can deem you responsible for whatever happens on your end of the wire, no matter if it’s you or someone piggybacking on your wi-fi. You may not be criminally liable, and I doubt they can assign any rights to a third party beyond current law - i.e. “under our terms of service, if Sony and Pixar sue, you are liable”. but they can hold you responsible for consequences with their service, i.e. cut off your service.
As for fair - if you have to pay $35 to have your case reviewed, presumably the people making the complaint have to pay some equivalent fee, otherwise where’s the fairness?
Whether the FCC has the right to regulate and obligation to enforce fairness - I don’t know.
IF, and that’s a big if, it becomes obvious that there are large volumes of false accusations and that these complain fees are little more than a revenue stream for ISP’s, then certainly there will be a legal issue and there will be class actions regardless of any waivers you signed since at that point their action borders on fraud in my opinion. IOW, they institute a policy for a stated and legitimate purpose which they know in advance that they will abuse.
edit: BTW, this is why I have a VPN that automatically connects as soon as I log on to my computer. It comes with my usenet service which admittedly is a bit pricey, but well worth it IMHO.
And if ISPs frivolously and gratuitously accuse innocent users of breaking the law, and force them to pay mediation fees (or whatever) to cleat their name, I would think large numbers of users would simply leave that ISP. People leave Comcast for simply being jerks and NOT charging a $35 fee.
It’s great if you have that luxury. Right now I get 50mbps download speeds from my ISP. I can’t get that from any other provider at the moment. ADSL is a joke as is satellite and there is no fiber such as Fios. Since I dl quite a lot, as evinced by my having a dedicated usenet provider, I would be quite loath to leave my current ISP regardless of the reason.
I understand you may have a unique need for premium service, but please inform me: how many high speed ISPs does your area have? Is there competition among providers for plain ol’ ordinary internet users?
I would imagine so - the types that I already listed. Satellite would probably be more expensive so the other options would be ADSL, dialup and maybe a tethered cellphone that still had unlimited data. That’s about all I can think of.
BTW, you have to pay $35 and you can’t do so with the first few warnings.
And due to the legitimate worry of false accusations, I’m perfectly fine recommending that you do a Google search for $5 VPNs, or look for a smaller ISP that has not instituted the policy. (Since it’s not a legal matter, I can recommend it on this board. Huzzah!) Mine hasn’t instituted the policy so far, and it would suck if they did for no other reason than no one uses the ISP provided email, which is where all notices will be sent.
And since they are only (AFAIK) monitoring certain peer-to-peer services, there’s no distinction between whether you are uploading or downloading, since you are always doing both. They’re going after the web hosts in a different manner.
Heck, I’ll even tell you how it works–it’s a honeypot scheme. The real owners host the file on the P2P server, thus any random person who is downloading that file may use their service. They record the IP address. Then they send that IP address to your ISP, who then gives you a Warning or Citation in your email.
The only real way to do this with a website would be to set up their own website.
So far most lawsuits were for “making available”. Note that bit torrent typically means that you are sharing (forupload) the segments of file you are downloading, so generally it’s hard to separate the two.
Keep in mind that the American principle of “guilty until proven innocent” is limited to criminal trials. People tend to think it’s fundamental and applies to everything, but that’s not the case. For example, police arrest suspects. The suspects are not assumed innocent; quite the opposite.
It’s only during the trial where innocence is assumed.
I assume you meant to say innocent until proven guilty. Even so, the same principle applies in civil trials it’s just applied a bit differently. There, one speaks of the burden of proof and one says that the burden rests with the plaintiff to prove their cause of action just as it is the burden of the state to prove their case against a defendant.
The main difference is the standard that is applied. In a criminal case one must be found guilty beyond a reasonable doubt whereas in a civil case the standard is by ‘a preponderance of the evidence.’