A number of industry trade associations have issued warnings to their members since major U.S. ISP’s entered into an agreement with copyright holders earlier this month on the so-called “six strikes” rule. The National Federation of Independent Businesses became the latest, publishing a set of plain-English guidelines that I believe should be a model for any business that offers WiFi or Internet access.
The organization tells members to use common sense in setting policies, and to make certain that visitors and employees know that illegal downloads are prohibited. Among the tips from are:
- Post signs that specifically prohibit copyright infringement, and give employees the right to eject anyone caught using the company’s network or WiFi for illegal activities.
- Limit the range of your WiFi to on-premise use whenever possible, to restrict “drive by” access from users in public places or nearby buildings.
- Require a password, provided by an employee, and change the password regularly to prevent users from coming back later and accessing the company’s WiFi from the parking lot, where employees can’t monitor activity.
- Turn off WiFi when the business is closed.
Farrell Quinlan, director of the Arizona NFIB office, was quoted in the Phoenix Business Journal saying that while free WiFi is an increasingly important value add for many customers, it’s a service that has to be approached with care.
“Many times, if you aren’t offering Wi-Fi, you are at a disadvantage to your competitors. But it’s important that small business owners realize the legal issues that they may be subject to,” Quinlan said.
“Unfettered, open Wi-Fi connections also allow people with less-than-honorable motives to use a service anonymously, without being a customer of a business. It’s those users who could download illegal content with the business owner facing the consequences.”
While I agree with the NFIB’s guidelines, I’m still troubled by the underlying agreement between the copyright holders and the ISP’s, which was worked out between themselves — with no public input from customers of either group. Why was there no seat for the public at the table where ways to reduce illegal file sharing were discussed? I don’t know — but I wonder if it isn’t because of the paradigm shift that’s built into the agreement.
People aren’t “innocent until proven guilty” with the six-strikes rule. They’re guilty until they prove themselves innocent — which is nearly impossible to do, and far too costly for most individual or small business users. It’s why people like the “Jane Doe” defendant in the Bay Area are heroes to families like mine.
It seems to me that the result of the agreement isn’t to use technology to restrict illegal downloads — it’s to create a climate of intimidation where people are simply afraid to download any free content. And, of course, to generate huge legal fees and lots of publicity designed to ensure that people comply out of fear.
Long ago, I worked as the head of PR and marketing communications at a very large company with thousands of retail stores. One day, 60 Minutes called to fact check a story they were calling, “The Company That’s Bugging America“. It seems that a woman had gone one of the company’s stores and convinced an employee to show her how to install a recording device on her home phone because she suspected her husband of infidelity. He was cheating — and when she went to court for her divorce, her lawyer played tapes of the husband having very intimate conversations with another woman.
The “other woman” promptly sued our company, because this all took place in one of the U.S. States where at least one part on a recorded phone call has to be aware that the call is being recorded, or the recording violates state wiretap laws. 10 states require that BOTH parties in a recorded call know that the call is being recorded, and 39 require that ONE party in the call know that it is being recorded, although several have exceptions to the law that allows the person who actually pays the phone bill — the account holder of record — to record calls on the line they pay for without notifying anyone else.
The story never ran under that title — it ran under the title “When Lovers Bug Each Other” — and our company wasn’t mentioned negatively. We also prevailed in the resulting lawsuit.
How? But showing that every employee in every store that sold telephone recording devices had attended at least a one-hour training session on their state’s laws on recording conversations, and that each employee signed a memorandum of understanding every six months, that reiterated the company’s policy on selling the devices. (The policy was simple: we’ll sell them, but only after explaining the state law on their use, and we put a written notice on the state law into the bag with every device sold.)
That lesson has stuck with me over more than 25 years. Policies that warn employees and customers not to break the law really do help when a company is accused of wrongdoing. That’s why the NFIB tips for business owners make so much sense to me: because sooner or later, some small business is going to be accused of enabling illegal downloads or copyright infringement.
Will having a clearly posted policy and well-trained employees help? Yes. Will it protect the company from liability? Not unless there are other security features in place, and unless the business can prove that it was doing everything it could to discourage and prevent illegal downloads.
If your family is anything like mine — diverse and constantly changing — and your house, vacation home, or family farm is a way station for friends and extended family members who drop in for short or long stays, you might think about an acceptable use policy for your home network, too.
Back in 2000, when the RIAA started going after Napster, I shocked my family and my granddaughter’s friends by insisting on written agreements whenever anyone stays at my house stating that I use my home network for business purposes, and anything done on any machine connected to a wired or wireless network in my house will be recorded (backed-up) and may be monitored.
They also agreed not to access or send certain kinds of content, or commit any illegal act using my connection. It’s the price they pay for free Internet and phone access in my home. They get the WiFi key and password AFTER the document is signed — and those who won’t sign, don’t get access to anything digital, including cable TV.
Excessive? I’ve been told it is. But when bullies with unlimited legal budgets are actively trying to frighten people into submission, sometimes the best defense is a good offense. I hope I never have to haul out those documents — kept in a fireproof file cabinet — and prove that I did everything I could to prevent copyright infringement and other illegal activities on a network I paid for in my name. I’d hate to be known as the grandma who hid behind a teenager, or the hostess who hid behind a houseguest.
But, guess what? I’d hate it even more if years of hard work were wiped out in a few minutes by winding up like Jammie Thomas, whose penalty for illegally downloading 24 songs was just reduced by a judge from $1.5 million to $54,000. (Do you know what I could do with $54,000??? I certainly do!)
If a copyright troll shows up at my door, I wouldn’t hesitate to turn in the real culprit, regardless of who that person is or how I’m related to them. That’s because I pay for everything you’ll find on my hard drive — usually more than once. And I expect my family to do the same. (After all, several people in our family — including me — rely on copyrights and royalties for a signficant part of our income.)
For instance, the last complete album ripped to my iTunes folder was Flotsam and Jetsam’s The Cold. I paid iTunes to download it, ripped one of the three CD’s I purchased (one for the car, one for my house, and one for the drummer, Craig Neilsen, to get autographed for my collection of signed “albums”), and backed it up on my external hard drive. Technically, I have installed the song on more devices than I own licenses for, but I don’t think the record company has a leg to stand on when it comes to the fact that I play the album on multiple devices (iPad, 2 iPods, a Blackberry, a PC, two laptops, and the car and home CD player), because of the four copies I purchased, it’s not possible that more than four devices would be playing the album at the same time.
Do I think everyone needs to buy four copies of everything? No. But two (one digital, one analog version) might not be too big a stretch for anyone whose really worried about becoming a target.
I started using Napster in 1999, and quickly filled a hard drive with songs I ripped from my CD collection and the online file-sharing sites. Heck, I even represented a company that made a product that ripped CD’s and DVD’s and organized the music people were downloading from Napster. And then the witch hunts started, and I decided I didn’t want to play the “who can we sue today” game.
Today, I’ve got about 10,500 songs or videos in my iTunes folder, and I can provide a license for all except a handful of them. (I don’t have a license for a video my husband made of my granddaughter singing, or of my grandson’s circus performance. Hope neither of them decides to sue me! Guess I’d better get their permission, huh?)
If you can’t say the same, at least make sure that your connection is secure, and you’re not sharing what you have with anyone else. That isn’t legal advice, it’s just good sense. A very smart man I know recently posted a request on his public Facebook page asking where he could download free music since the RIAA shut down the peer-to-peer service he was using. I thought, “Watch out! They monitor social media — you’re the next target.”
It hasn’t happened yet, but I’m waiting until I see him bewailing the copyright troll’s assault on his bank account. The watchword these days on the subject of file sharing is “It’s better to be silent and be thought uncool, than to open your mouth and become a target.” (With apologies to Abraham Lincoln.)
I’ve said it before, but let me say it again. The problem here isn’t legitimate copyright holders enforcing their rights — it’s copyright trolls who create nothing except trouble and legal fees. We need to crack down on them before we’re all paranoid about digital media.
For more tips on protecting yourself from copyright trolls, especially if you’re a blogger or social media user, check out these earlier posts that detail specific steps to take to protect your personal or business assets.