> On Apr 26, 2019, at 11:57 AM, Mel Beckman <[email protected]> wrote:
>
> Anne,
>
> As a lawyer, I’m sure you realize those overly broad policies are
> unenforceable on their face. Phrases such as “resell...directly or
> indirectly” could just as easily be interpreted to mean you can’t perform
> paid consulting work by email over a residential link — something patently
> ridiculous.
>
> Can you cite any case law where these restrictions have been enforced? I
> believe if a case every cane to court, the defense would have an excellent
> argument that the plain meaning of these restrictions is to prevent others
> from buying direct Internet access from another communications channel (e.g.,
> WiFi) from the residence, not passing data through the residence.
Mel, we will have to agree to disagree. I know that if I were representing any
of these providers, I know what arguments I'd make, and we would almost
certainly win.
Courts don't look kindly on breach of contract (nor on inducing breach of
contract, as Packetstream is), and the ToSs very clearly state you cannot
*resell* your residential bandwidth, which is precisely what is going on here
(there is no legal theory of which I am aware under which that could be
interpreted to mean "can’t perform paid consulting work by email over a
residential link", novel though your theory is. Performing paid consulting
work is *not* 'reselling bandwidth").
Anne
Attorney at Law
GDPR, CCPA (CA) & CCDPA (CO) Compliance Consultant
Author: Section 6 of the CAN-SPAM Act of 2003 (the Federal anti-spam law)
Legislative Consultant
CEO/President, Institute for Social Internet Public Policy
Board of Directors, Denver Internet Exchange
Board of Directors, Asilomar Microcomputer Workshop
Legal Counsel: The CyberGreen Institute
Former Counsel: Mail Abuse Prevention System (MAPS
California Bar Association
Cal. Bar Cyberspace Law Committee
Colorado Cyber Committee
Ret. Professor of Law, Lincoln Law School of San Jose
