Re: BT Total Broadband
- From: Ste <ste_rose0@xxxxxxxxxxx>
- Date: Wed, 1 Apr 2009 14:23:10 -0700 (PDT)
On 1 Apr, 18:01, "Norman Wells" <no-...@xxxxxxxxxxx> wrote:
And I reiterate my answer which is 'sometimes, yes'. The sometimes
are when the respective acts are closely related, when it
essentially comes down to an explicit or implicit personal contract.
You don't burgle my house, I don't shoot you. That sort of thing.
I disagee, see. I suspect you know next to nothing about the law, and
even less about the logic upon which it is built.
And you seem incapable of grasping the difference between what the law says
and what it should say.
If you're not even talking about the law, you should have made that
more clear. Also, if you don't know what the law says, or more
importantly *why* it says what it does, then I don't think you're in
any position at all to suggest a change in the law.
What I suspect you are doing is generalising from what is acceptable
in personal relationships, and applying that to economic relationships
in a large modern economy.
And why is that a bad thing? Most corporate law has developed from human
relationships, and what works and what doesn't in those.
I accept the common law has its origins in relationships between the
rich and powerful. However, the fact that it *developed* from that
does not necessarily mean it is a good idea to go "back to basics" as
it were.
Sometimes it does. If one party breaches a contract, I don't have
much or any sympathy if he then complains that the other party has
retaliated in some way. The guilt lies more in my view with the
first to breach the agreement, whoever that is.
The correct way to retaliate, at law, is to commence proceedings.
No it isn't. What actually happens is that you complain about breaches and
try to get them resolved. If the other party appears intransigent, you then
apply any sanctions you can in an escalating fashion until he gives way or
an agreement is reached. Only as a final resort do you commence
proceedings.
Be that as it may, the law does not vindicate a tit-for-tat approach,
and nor in general does it vindicate "sanctions".
In fact one principle of contract law is that one contract does not
interfere with another, and as such the breach of one contract by one
party does not justify the other party breaching all other contracts
with the first party.
In
any event, the ISP is not retaliating - in fact they are quite happy
for you to download copyrighted material
No they're not. My ISP agreement has the following clause:
"8.1 You must NOT use the Service or any part thereof:
...
8.1.4 to send, knowingly receive, encourage the receipt of, upload,
download, use or re-use any material which is abusive, indecent, defamatory,
obscene or menacing, or in breach of copyright, confidence, privacy or any
other rights or which may contain viruses or other similar programs, or
which causes overloads to the Company System"
I imagine yours has similar provisions.
We're talking about two different things here. When was the last time
you heard of a subscriber getting cut off under one of those clauses?
In reality the clause is there to pay lip service and make it appear
that the ISP is taking a hard line, when in fact they are doing
nothing of the sort (hence all those noises from the record and film
industries).
, and the throttling is
imposed for a totally separate reason (and is imposed whether or not
you are in fact downloading copyrighted material).
It is, but the two are very closely interconnected. The vast majority of
those using so much bandwidth are illicitly downloading copyright material
in breach of their contract with their ISP.
Again, you're putting this argument forth without any evidence
whatsoever.
I submit a more rational and economic justification for the throttle
is network management. The fact that it frustrates those who
unlawfully download an excess of copyrighted material is just an
incidental consequence. On the other hand, it also frustrates those
making legal use of their connections, and does not frustrate those
who download unlawfully but within the 40GB/month limit.
As I say, you're applying the logic of personal relationships to
relationships that are not personal.
And there's nothing wrong with that.
Which shows your ignorance (or, alternatively, it shows an extreme
right-wing philosophy).
If I have a contract with you to supply a dozen tennis balls a month
for £10, and you stop supplying them, do you expect me to continue
paying?
No, I don't, which supports my argument and not yours. The fact that I
was misusing the tennis balls in some way does not excuse your failure
to supply them where that failure is not related at all to my misuse
(and in fact you don't even have any knowledge of the misuse I am
putting the the balls to).
If the terms in the contract say that you will not use the tennis balls I
supply for illicit purposes and it comes to light that the majority of
people using the quantities you do are using them for such purposes, I'd be
perfectly within my rights to throttle the supply. I may even be required
to do so by law in order to avoid aiding and abetting.
Nothing has "come to light". All I am doing is using the full 12 balls
that you agreed to provide. If it is your position that only criminals
use 12 balls a month, then why the hell are you offering to supply
them in the first place?
They throttle in any event. The throttling has *no relationship
whatsoever* to the downloading of copyrighted material.
You've simply invented some relaionship between the two in your own
head - with at least one imaginary notion being that ISPs give a toss
about copyright holders.
Then why mention them in their terms and conditions?
For the reasons I've outlined.
And I
don't think they need absolute proof of that either.
In a court of law, it would not even meet the test of proof on the
balance of probabilities.
That depends on the evidence. If, say, it could be shown statistically that
90%+ of those hitting the buffers are indulging in illicit copyright
infringement, that inevitably meets the test of balance of probabilities for
anyone doing likewise.
I'd be very surprised indeed if anyone would be convicted (or judgment
entered against them) solely on the basis of a loose statistical
correlation. Again, you take the phrase "balance of probabilities" at
face value, without knowing what that test really means at law.
Hitting the buffers is
quite enough indication according to several people here in the vast
majority of cases.
No, what I said is that, I imagine in the majority of cases, there
will have been *some* copyrighted material downloaded unlawfully. That
is not to suggest the whole 40GB is made up of copyrighted material.
All I concede is that the downloading of copyrighted material does
occur, and it seems prevalent with, I believe, a majority of internet
users having done so at one time or another.
It doesn't make it legal. Nor does it make it decent, honest or truthful.
I didn't say it made it legal.
.
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