Antipiracy Efforts Conflict With Advocates’ Push for Open Wireless Networks

CAS’s “memorandum of Understanding” with ISPs (http://bit.ly/pU672x) is troublesome because it has “language that implies that unsecured wireless networks are inherently bad,” Kamdar said. CAS aims to combat peer-to-peer piracy through educational alerts and mitigation measures that don’t include service termination, and it’s scheduled for an early 2013 rollout (CD Nov 29 p15). The memo said educational notices that are a part of the system “shall include, among other things, information about the technical means Subscribers can use to secure their computers and networks to avoid unwittingly assisting others in Online Infringement.” These “warnings and ‘educational’ alerts will definitely chill folks from using open wireless, playing up the fears of legal liability that already scare people from opening up their networks,” Kamdar said. OWM is working to make portions of subscribers’ networks available to the public based on how much of the network that subscriber needs, he said.

ISP subscribers with open wireless networks will ultimately be held responsible for the activity of others using their networks under CAS, Kamdar said. The memo said a subscriber may appeal a mitigation measure by requesting an independent review. That’s if “the alleged activity was the result of unauthorized use of the Subscriber’s account by someone who is not a member or invitee of the household (e.g., via an unsecured wireless router or a hacked Internet connection) of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented,” the memo said. “This defense may be asserted by a Subscriber only one (1) time to give the Subscriber the opportunity to take steps to prevent future unauthorized use of the Subscriber’s account.” That the defense can only be used once implies “that folks better lock down their networks or else,” Kamdar said

CAS hopes to make subscribers aware when illegal activity is happening on their networks, Lesser said. “Our hope is that once accountholders are aware of activity, they will take the appropriate steps to prevent users on their account from using the connection illegally, whether the users are in their household or outside.” These appropriate steps include subscribers securing their wireless networks, which is “the best possible way to ensure outside individuals do not take advantage of your wireless network,” Lesser said. Ultimately, she said, “it is up to the accountholder to protect their networks with a password, for example, and they will continue to receive Copyright Alerts (through the fifth or sixth alert) if the copyright-infringing behavior continues."

Outside of CAS itself, participating ISPs have “terms of service that aren’t open-wireless friendly,” Kamdar said. OWM is “trying to work directly with these ISPs to fix their terms of service,” he said: Currently all five ISPs participating in CAS have terms of service that either discourage or outright prohibit subscribers from opening up their wireless networks. AT&T’s terms (http://soc.att.com/YQuE0a) require subscribers “agree not to, whether for a fee or without charge, reproduce, duplicate, copy, sell, transfer, trade, resell, re-provision, redistribute, or rent the Service, your membership in the Service, any portion of the Service, use of the Service, or access to the Service” and “agree that the Service is not to be used to trunk or facilitate public internet access ('Hotspots') or any other public use of the Service.”

Cablevision’s terms (http://bit.ly/4ys31O) require subscribers to agree they will “not resell, share, or otherwise distribute the Service or any portion thereof to any third party without the written consent of Cablevision.” Time Warner Cable’s terms (http://bit.ly/9chi) said subscribers “may not provide the Services to any person who is not a member or guest in your household, or to persons outside your premises, whether for a fee or otherwise.” The agreement requires that users “take reasonable precautions to prevent others from gaining unauthorized access to the Services.” Under Verizon’s terms (http://bit.ly/7PTmsn), subscribers “may not resell, re-provision or rent the Service, (either for a fee or without charge) or allow third parties to use the Service.” The terms make subscribers “responsible for all use of your Service and account, whether by you or someone using your account with or without your permission."

Comcast “seems plausibly agreeable to open” Wi-Fi based on the company’s terms of service, which are less proscriptive, Kamdar said. The cable operator’s “Acceptable Use Policy” for Xfinity Internet (http://xfin.tv/nTvV3S) said subscribers cannot “resell the Service or otherwise make available to anyone outside the Premises the ability to use the Service.” Kamdar added, though, these “terms involving ‘premises’ don’t really help.” While Comcast reserves the right to monitor the use of its service, it’s not obligated to do so, the company said in its policy. It “prefers to inform customers of inappropriate activities and give them a reasonable period of time in which to take corrective action,” the company said. Comcast recommends that “subscribers use security measures and strong passwords to protect themselves and their service, but they are free to do as they choose with their service,” a company spokesman told us. The other ISPs did not respond to requests for comment

ISPs in some other countries are more receptive to open wireless initiatives, Kamdar said. “Since many countries are situated farther away from a strong copyright lobby, foreign ISPs are sometimes more willing to embrace new wireless-sharing business models or support the Open Wireless Movement.” But some countries, such as France and Germany, he said, have “strict laws [that] fight against open wireless networks by reassigning liability to the network provider.”