Deception in court. Part II: Non-existent requirement in AT&T TOS

Posted: June 23, 2011 by SJD in Sperlein
Tags: , , , , , ,

In his amended complaint (IO Group v. Does 1-244) Mr. Sperlein lists 5 causes of action:

  • Copyright Infringement 17 U.S.C. §501
  • Contributory Copyright Infringement
  • Vicarious Copyright Infringement
  • Civil Conspiracy
  • Negligence

Though arguments listed in favor of these causes are seriously flawed (“Civil Conspiracy” is simply bizarre), let’s still look at the last one: Negligence (page 22). According to the arguments, running an unsecured wireless network is a negligent act. Mr. Sperlein argues that “reasonable internet users” should secure their networks. If it is his opinion, that’s fine, but this is not the only “reasonable” opinion: many people, organizations, and entire cities think that opening wireless access is not only far from negligent, but, instead, a desirable and noble action. We touched upon this topic recently, and also there were many forum discussions. The best short comment I found in one of such discussions was:

It’s such a shame that we live in a world where free access to the internet for all is quickly becoming a crime…

Feeling that his arguments aren’t convincing, Mr. Sperlein resorts to lies:

84. Reasonable Internet users take steps to secure their Internet access to prevent the use of such accounts for nefarious and illegal purposes. As such, Defendants’ failure to secure their Internet access accounts, and thereby prevent such illegal uses thereof, constitutes a breach of the ordinary care that reasonable persons exercise in using an Internet access account. In fact, AT&T, the Internet service provider who provided service for Defendants requires in its Terms of Use that subscribers secure wireless routers with a password.

Now, please look at AT&T’s Terms of Service (there is no such document as “Terms of Use” by the way) and find this requirement.

(By the way, forum commenters checked TOS’es of two other major ISPs – Verizon and Comcast – and failed to find a requirement to protect wireless networks with a password.)

Comments
  1. Doe123456 says:

    Sad. It is very sad that a lawyer would provide a false statement about the “requirement” for subscribers to secure their wireless access point. The ISP’s advise that you do this, but it is not a condition of service. Based on the fact that many ISPs do allow a subscribing company (Starbucks, etc.) to provide open wireless access for their patrons, it is not “negligence,” but a service option (with a higher price tag). The ISPs are trying to make money and don’t want residential customers to be providing mini free ISP service – unless they pay for it. Here is a list of businesses that provide open wireless access in California – http://www.wififreespot.com/ca.html. I liked the other post about the District Court of DC running an open wireless. I hope Mr. Sperlein doesn’t try to say that court is negligent by doing this. I actually wish he would. :) One good thing about this false statement is it just adds fuel to fire the Trolls are building for themselves. It seems more Judges are getting feed up with these tactics to extort money from Does and wasting the courts’ time.

  2. John Doe says:

    The last part of this post is a cut/paste from the COMCAST Web site under their The Comcast Business Services and Commercial High-Speed Internet Acceptable Use Policy. You can see COMCAST clarified their acceptable use policy. Specifically you cannot sell or
    provide access to your network (provided by COMCAST to your business) unless you have their written approval in accordance with an applicable service plan.

    Essentially COMCAST said if you want to run a Wi-Fi “hot spot” (open or password protected – they don’t specify); you need to pay for one of their business plans, as well as getting their permission and paying for this option. My point in this is the COMCAST DOES NOT prohibit running an open wireless access point based on any “security” or “liability” issues. This is strictly a “Paid” service COMCAST charges for. I have a call in with COMCAST, as I would like to know what they charge for this service. I will post what cost I’m quoted. I haven’t looked into the other ISPs, but I feel it is safe to assume they have similar business services available.

    The ISPs will also make it very clear that they wash their hands of any illegal activity that occurs on your network (regardless of if it is an open or closed network). As ISPs and their business customers (example – Coffee shop running a WiFi hotspot) are able to define acceptable use and inform users that illegal activity is not acceptable, I would argue residential customers could do the same. I’m not saying the residential user would be running a business style WiFi hotspot, only “guest” access (open or password protected). The issue is how to inform the guest user on you acceptable use policy. I know of no residential firewall/router that gives you the ability to add a “Banner” web page, requiring users to click on a button stating they have read and understand your acceptable use policy. And honestly, how many of the average users out there have a good understanding of their firewall/router, network security, or acceptable use policies? Also how many of you just click through warning banners and end user agreements without truly reading or understanding it all? I guess I could post it on a wall in my residence.

    =================================
    Terms & Conditions

    Policies
    The Comcast Business Services and Commercial High-Speed Internet Acceptable Use Policy has been revised to clarify the following:
    • The Service cannot be resold or otherwise made available to anyone on the Premises or outside the Premises (i.e. wi-fi, “hotspots”, or other methods of networking), directly or indirectly, unless done with Comcast’s written approval in accordance with an applicable Service plan.
    • The Service cannot be made available to anyone other than you or your authorized employees or contractors unless done with Comcast’s written approval in accordance with an applicable Service plan.
    • The Service cannot be used to send unsolicited bulk or commercial messages or “spam” in violation of the law.
    • The Service cannot be used to run servers unless you have selected a Service plan which includes a static or statically assigned IP address.
    • If you have selected a Service plan with a static or statically assigned IP address, the Service can be used to host a public website.

    ================================
    More detail from another COMCAST section:

    • make the Service available to anyone other than your business or your business’ authorized employees, contractors, or users (i.e. members of the public, customers of an establishment, hotel or motel guests and patrons, or persons in a residence hall or apartment building) unless done with Comcast’s written approval in accordance with an applicable Business Services Agreement;
    • resell the Service or otherwise make available to anyone outside the Service Location(s) the ability to use the Service (for example, through wi-fi or other methods of networking), in whole or in part, directly or indirectly, unless expressly permitted by the applicable Business Services Agreement

    • I know one common brand (Belkin?) routers has the ability to run 2 wireless networks: one is secure, the other is “hotel-style” with web access only, none of the network computers is visible. If you enable it, then first dns request is intercepted and a page where you can enter a password is presented. I’m not sure if you can add any messages to that page though.

      • John Doe says:

        I have one of the newest Linksys home firewall/routers with this 2-network option. The user manual does not show any way to edit this. I have submitted this issue to Linksys and ask they consider adding it to a future firmware update. I haven’t heard back from them yet.

  3. John Doe says:

    Here is my draft “terms of use” document. I figure I will post it somewhere in my residence, as well as somewhere on the Internet. I have blanked out my network name, so anyone interested can edit it to meet their needs. Cheers.
    ———————————————————
    Wireless Network for Guests and Friends of “(Network Name)”

    You have connected to the (Network Name) Wireless Network, for use by friends and guests of the owner while visiting my residence. If you are not a friend or guest of (Network Name) owner, you are not authorized to connect to the (Network Name) network. For the purpose of this document, the term “(Network Name)” will refer to both the “secure” and “open” network/Internet access point run out of this residence. For all valid friends and guests of the (Network Name) network, please read the following network terms of use. To use this network, you must read and accept the following terms of use. If you do not accept and abide by these terms of use, the owner of the (Network Name) network does not authorize its usage and requests you disconnect from the network immediately. The owner of the (Network Name) network reserves the right to, but not the obligation, to suspend access to this network.

    NETWORK – INTERNET ACCESS / TERMS OF USE

    Please read this agreement carefully before using the (Network Name) network. This is an agreement between you and the owner of the (Network Name) network. By acknowledging this agreement and/or using/the (Network Name) network/Internet, you agree to these terms.
    The (Network Name) wireless network is available to your device only when it is in the operating range of our residence. Access to the (Network Name) network is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair. The access may be interrupted, refused, limited, or curtailed.

    The owner of the (Network Name) network is not responsible for data, messages, or pages lost, not delivered or misdirected because of interruptions or performance issues with the network. The accuracy and timeliness of data received is not guaranteed. Delays or omissions may occur. Actual network speed will vary based on your device configuration, location, compression, network congestion and other factors.

    NETWORK – INTERNET ACCESS / PROHIBITED USE & COMPLIANCE WITH LAW

    Reproduction, retransmission, dissemination, or resale of the network/Internet access (whether for profit or not), is prohibited.

    You may not share your IP address or Internet connection with anyone, access the network simultaneously through multiple units, or authorize any other individual or entity to use the network. You may not use the network/Internet access for any purpose that’s unlawful, or in any manner that could damage our property or others’ property. You may not use the network in any way that interferes with, harms, or disrupts our system or other users.

    The owner of the (Network Name) network has the right, but not the obligation, to suspend or terminate your access and use of the network/Internet access, and to block or remove (in whole or in part) any communications and materials transmitted through the network that we believe in our sole discretion may violate applicable law, this agreement or a third party’s rights, or that is otherwise inappropriate or unacceptable. We also have the right, but not the obligation, to monitor, intercept and disclose any transmissions over or using our facilities, and to provide use records, and related information under certain circumstances, such as response to lawful process, orders, warrants, subpoenas, or to protect our rights, property, and users.

    CONTENT DISCLAIMER

    The internet contains materials that you may find objectionable or offensive. We don’t publish or control, and are not responsible or liable for, any third-party information, content, services, products, software, or other material that can be accessed through the network/Internet. You are solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products and other information, and the quality and merchantability, accuracy, timeliness or delivery of such services, products and other information. You’re responsible for paying any charges that you incur from third parties through your use of the Internet, and your personal information may be available to third parties that you access through the network/Internet.

    PRIVACY AND SECURITY

    Wireless systems transmit voice and data communications over a complex network. The privacy and security of such voice and data transmissions cannot be guaranteed. You acknowledge that the (Network Name) network/Internet is not inherently secure, and you understand that wireless communications can be intercepted by equipment and software designed for that purpose. We are not liable to you or any other party for any lack of privacy you experience while using the (Network Name) network/Internet.

    DISCLAIMER OF WARRANTIES

    The owner of the (Network Name) network is providing Internet access on an “as is” and “as available” basis, with no warranties whatsoever. In no event will we be liable for any direct, indirect, incidental, consequential, special, exemplary or any damages associated with your use of the (Network Name) network/Internet. No advice given by the owner of the (Network Name) network or our representatives shall create a warranty. You assume all responsibility and risk associated with your use of the (Network Name) network/Internet.

    Any use of (Network Name) network/Internet access must be in accordance with these “terms of use.” Friends and guests of the (Network Name) owner are expected to use the network/Internet in a legal, responsible, and considerate manner, consistent with the informational, research, and recreational purposes for which it is provided.

    In order to connect to the (Network Name) wireless network, your device must have a WiFi-compatible network card installed (802.11b/g/n 2.4GHz) or (802.11a/n 5.0GHz). Access is provided within and immediately around the residence. Your wireless device should detect the signal immediately (Note: Some wireless software may require some additional procedures and/or setting changes. Please consult your user’s manual, or contact your hardware or software provider for any additional assistance.) Once your device picks up the wireless signal, select the (Network Name) wireless network for friends and guests:

    SSID/Network Name = “(Network Name)-guest”

    For access to the secure “(Network Name)” network/Internet, please contact the (Network Name) owner to obtain additional details and password.

    Please note the following information and guidelines:

    • As with many wireless Internet access points, the (Network Name)-guest wireless connection is not secure and privacy cannot be protected. Any information being sent or received could potentially be intercepted by another wireless user. Wireless users should not transmit sensitive personal information (credit card numbers, passwords, etc.) while using this or any open wireless network.
    • Use of the (Network Name)-guest wireless connection is entirely at the users own risk. The owner of the (Network Name) network is not responsible for any loss, injury, or damages resulting from the use of the wireless connection.
    • Friends and guests should be familiar with their own personal wireless devices and should have basic knowledge of how to connect their own devices to a wireless network. The owner of the (Network Name) network is not responsible for proving technical assistance with personal devices or configurations and cannot guarantee that the user will be able to make a wireless connection.
    • Use of the (Network Name) residential electrical power is entirely at users own risk. The owner of the (Network Name) network is not responsible for any loss, injury, or damages resulting from the use of the residential electrical power. Users may not tamper with electrical equipment or wiring.

    The owner of the (Network Name) network would like to thank the US District Court for the District of Washington DC, for providing “open” wireless access to their patrons and for proving their Wireless Access Terms of Use and Wireless Guidelines that these “terms of use,” were based.

    Signature
    Printed Name, Date

  4. John Doe says:

    It may be a bit geeky for some people, but I found a site that allows you to load software to a firewall/router to run a WiFi hotspot for free – http://www.hotspotsystem.com/en/main/index.html

    It appears with this software, I can link my “terms of use” – http://www.hotspotsystem.com/en/hotspot/free_hotspot.html

  5. [...] negligence-based theories are not new: FightCopyrightTrolls reported on a very similar case (IO Group v. Does 1-244*) about a year [...]

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