Re: Re: Re: Re: Re: I never accused any one of stealing...
Thanks for your reply.
I guess the question is what can an artist use as reference.
IANAL, but I believe that from a legal standpoint, the question is about the specific expression and the transformative nature of a given piece of art rather than what was used as a reference. In other words, it would be perfectly legal for someone to use another's art -- be it a picture, a painting, or a rendering -- as a reference (or for inspiration, if you like) as long as the expression of that work was different or it was transformed in some meaningful way.
It just feels wrong to me to take an original work that someone else did, paint my own copy of it (leaving the framing, lightning, and structure intact), and then sell it for huge royalty checks
I can certainly sympathize with your feelings. Being a common reader of TD, I sometimes come across cases where my initial feelings conflict with the law. However, there is a big difference between feelings, what is moral, and what is legal. If Mr. Cortes did use your work as a reference, I might think a bit less of his originality, but I wouldn't think of that as an immoral or even illegal act.
It's a blunt way to say it, but the fact is that copyright law was not designed to protect the feelings of artists. They were designed to incentivize the creation of art. If more and better art can be created in a world where people can reference other art as long as there is some meaningful transformation, then so be it.
Re: Re: Re: I never accused any one of stealing...
Maybe there isn't. That's sort of the question I was asking by bringing this up in the first place.
I always appreciate when the topic of a TD post is able to reply in the comments, but I do have a comment of my own about the above. You stated this...
I do, however, think there is a big difference between using a photograph as a reference and an original artwork (that was not based on a photograph).
I'm sorry, but that's not a question; it's a definitive statement. Would you explain what you think the difference is and, more importantly, the relevance of this distinction in the question of whether there was anything wrong or illegal with what Mr. Cortes did?
we've suggested that what the patent system really needs is an independent invention defense -- such that those who come up with things entirely independently of the patent in question are not guilty of infringement
So, are you saying that an independent inventor could just use their own invention and not be found "guilty of infringement" or that they would also actually be co-"owners" of the patent and use it commercially?
Because if it's the former, it doesn't seem like that great a benefit. ("Yay! If I ever get cancer, I can use the cure that I invented, but I can't actually make any money from it.")
And if it's the latter, it seems like the level of complexity would be huge. Assuming that you could come up with a fair and reliable way to determine if an invention was truly independently developed, how would the co-owner thing work? Could the "new" inventor sue someone for infringement, possibly the same party that the original inventor had sued or was currently suing? Would the new inventor be entitled to any benefits from existing contracts with the original inventor or worked out in previous lawsuits involving the original inventor? Would the new inventor be able to license the patent to other parties, say to the original inventor's competition? If I trained someone who was otherwise completely ignorant of a particular technical field, put them in a "clean" environment, and they independently invented something in every day use, could we start suing people for infringing on that patent? Could the current owner of a patent do the same thing to get around their own patent expiring, thus leading to a perpetual patent?
I'm not saying that I'm against this idea. There are probably ways to get around the questions I'm asking. But I'm guessing one of the reasons that the "first to" model exists is to keep the whole thing simple, if not fair.
What if you worked for the government, does that open all of your actions up to being transparent?
Not all of your actions, but any that relate to your role as an agent for the government, no matter how many "sub" levels you are down in the process. So, for example, what you did on your own time as a government agent is private, but every single one of your e-mails on your government account is not. If you work for the IRS, the picture of your dead body (if there was one) would be private. But if you are a private citizen of another country, but you masterminded one of the largest massacres of innocent lives in human history which later warranted a military strike to kill you, the government's requirement for transparancy supercedes your right to privicy.
There really isn't a difference here. The FOIA employees would defer any request for classified info back to the agency.
There's a big difference. I don't claim to be an expert on this process, but presumably, the FOIA employees have a deterministic process to identify the (secret) classification of any piece of information. Perhaps this process involves a request to outside agencies, but the point is that the FOIA employees are supposed to be responsible for ensuring that the overall release process is free of bias. The big difference is that if you leave the decision on whether to release something up to the very people who are affected by the decision, you have a non-deterministic process because the decision can (and most likely will be) be biased. It's like the fox watching the henhouse.
If Gates and crew just didn't want the photo released, all they had to do was categorize it at top secret. That fact that they broke the procedure (if not the law) by taking over the whole approval process seems to indicate that they wanted to circumvent the controls that had been put in place.
If an FOIA request is approved and the picture of dead Usama bin Laden is released, sending the rest of the muslim nation to attack the US and kill thousands of people again, who would step up to take that responsibility?
Who should be held responsible for a terrorist attack? Uh...the terrorists?
The guilt would have to fall upon the one requesting the picture.
Do you also think that rape victim's are to blame because they were "asking for it" by the way they dressed? And do you think that Alexander Graham Bell should be held accountable for every prank phone call? Here's a novel idea, what if we held people accountable for their own actions instead of placing the blame on others?
In reference to this particular case, I'd much rather have a government that was open by default (and deal with any negative repurcussions) than to have a government that not only hid things by default but hid the way that they hide things. More information is better for democracy, not worse. And the good news is that it's going to just get harder and harder for the government to keep information secret anyway.
The freedom of information act doesn't mean you get access to anything you want whenever you want without restriction.
Tim didn't say that it did, so what's your point?
What is so difficult to understand about that?
The violation which is the focus of the post isn't that the photo is being withheld, but the nature in which it's being withheld. Specifically...
"In direct violation of the FOIA terms, it looks as if these requests are being handled by Robert Gates and his staff, rather than the non-partisan FOIA employees who are supposed to be handling them"
So, what's difficult to understand is how the DoD, with approval from the Obama administration, is so blatantly allowed to break the law. If the photo has been tagged "secret" as you say, then the normal FOIA process woudl apply and it could be withheld.
Hulser, do you really want money-dependent politicians to define the phrase "useful information"?
Absolutely yes. Because it's the lesser of the two evils between stupid laws and biased PSAs.
What are the criteria used to define the parameters and which department would be responsible for posting said information?
Let Congress argue and bicker over which topics to promote or what misinformation to debunk. The more time they're doing this, the less time they'll have to create stupid new laws that have a direct impact on what I can and can't do.
Have you head the expression, "To a man with a hammer, every problem looks like a nail."? Well, this applies to Congress. The only tool that they have is creating a new law. In order to justify their own existance, politicians have to create new laws. After passing yet another stupid new law, members of Congress feel like they can go back to their home state and say, "See what I did! I helped! I passed a new law that solves [insert panic topic de jour here]."
This need for justification isn't going to go away. Like children, we have to give Congress something to do to keep them occupied so that they don't get themselves (and more importantly, us) into trouble. If this means creating a government agency, even a large one, the mission of which was to publish information and debunk misinformation, then so be it.
While I don't think that we need a federally funded agency dedicated to fact checking the Internet, I don't see a problem with the governement publishing and promoting the distribution of useful information, part of which could be debunking misnformation. In fact, it might even be a better solution than the default behavior of politicians faced with the latest issue "threatening" the public today, which is to create some stupid new law.
What if there was a new tool in their toolbox to allow for addressing these issues without a new law? I personally wouldn't have a problem with a government agency that proactively tried to publish the results of the research that the government already pays for. For example, would you rather have a new law that bans texting while driving or some government agency buying some web and TV ads explaining the associated dangers? And yes, any organization can be politicized, but even a biased message is better than a ban.
If I had to guess the purpose of the Canadian Private Copying Collective, just based on the name, I would think it was for people who got together in private groups to trade copies of pirated movies and songs.
The rental term is 30 days from when you pay... but once you start watching, you only have 24 hours to watch. This particular limitation is particularly annoying to those of us who don't always watch movies in a single sitting or a single day (it's amazing how your movie watching gets fragmented once you have little kids).
Amen, brother. I got burned by this the first (and only) time I rented a movie online. Things start to calm down around my house at about 8:30, so if I'm going to watch any TV, this is when it starts. So, one night, at about 8:30, I start watching the rented download. But I didn't finish it, so the next night, at about 8:30, I sit down on the couch and go to restart the movie. But of course, I'm trying to watch the movie at the very time it's expiring!
If they were intentially trying to frustrate their customers, they couldn't have done a better job. Why not make the expiration 24 hours plus the average length of a movie? Are they really thinking that people should pay twice to watch a movie across two days? Are they being stupid or evil?
Deciding whether to settle out of court with a patent troll is similar to deciding whether to pay a ransom to a kidnapper. In both cases, you know that what you'd be doing would contribute to the overall problem, but you're balancing that abstract, overall, long-term negative against the immediate, personal, short-term benefit.
The difference, I think, with settling with a troll is that you're not just making it worse for your fellow citizens, but for yourself. As Mike pointed out, settling with trolls may be good in the short term, but you're setting yourself up for being sued for the lifetime of your company.
I know that it's the nature of people (and corporations) to focus on short term gains, but I still don't see why companies don't draw a line in the sand and say "No, we will never settle with anybody, ever over a frivolous patent lawsuit." Sure, there'd be some additional costs up front, but eventually the trolls would just move onto easier targets i.e. companies that were stupid and shortsighted enough to actually give into the demands of the trolls.
if you paid the bike manufacturer an additional "riding outside my neighborhood" fee, then it wouldn't be 'stealing' anymore.
What you're either ignoring or simply failing to take into account is that the agreement was known before hand. It's not like the phone company is coming along after the fact and making up rules as they go. If you sign a contract that says you are not allowed to tether without paying extra and you tether without paying extra, then you've breached the ToS. If you rent a bike and agree not to leave the neighborhood and then proceed to leave the neighborhood, then you've breached the ToS.
This is like purchasing gas from a gas station, and then the attendant calling you up and going "By the way, you are not allowed to leave the state, or drive with a passenger in your car. If you would like to do those things, we will need more money."
I'm not sure if you're being intentionally deceptive or really don't understand the difference between an agreement made before receiving service and an ex post facto restriction. Your analogy if flawed. It is not like a gas station calling you up after you purchased gas and telling you about their restrictions. To fix your analogy, it would be like a gas station that made you sign a contract before you bought gas that you were not allowed to leave the state, etc. If this were to actually happen, you'd just go across the street and buy your gas there. But the obvious problem is that there isn't the kind of competition with data carriers as there are with gas stations.
Well, you are also missing the fact that...I paid for this bandwidth I am using so why can't I use it?
For the simple reason that you agreed not to use it in specific ways. And if you do use it in those specific ways, you've breached the ToS.
if you use the bike in Boston, it will cost you $.75/mile to ride it. If Manchester, NH, its $1.34/mile.
The only reason that bike manufacturers don't apply onerus terms of service restrictions on bikes like you suggest is that there is actual competition in the bicycle market and people wouldn't stand for it.
As a service to you, we offer free, with no charge, the ability to store it in your house 24/7 as long as you don't look at it or think about it.
You don't have to convince me how silly charghing for tethering is. I know it's silly. The point of my post is to say that there is at least a logical argument for unauthorized tethering being theft.
Re: Re: Seeing past his bluster to see his (still flawed) point
The problem is that the government doesn't allow competition and so ISP's can do whatever the heck they want without as much fear of losing customers.
I don't have links, but as I recall one of the common points that Mike makes is that if the government focused on creating a fair marketplace, then they wouldn't have to spend so much time addressing all of the little anti-competative issues that come up. Because they simply wouldn't happen in a truly fair marketplace. If I were a conspiracy theorist, I'd say that it was a conscious effort on the part of politicians to keep themselves looking busy to justify their existance.
Here's my devil's advocate answer to "Is Tethering Stealing Bandwidth?"
Yes, because you are depriving another party of a finite resource. If you steal someone's bike, that person doesn't have the ability to use that bike, so it legally qualifies as theft. But if you make an illegal digital copy of a song, it's copyright infringement, but not theft because the owner still has access to the song. Unauthorized tethering is more akin to taking someone's bike because while bandwidth may be near-infinite, it's not actually infinite, so you are in fact depriving the owner the use of that bandwidth (as described in your Terms of Service agreement.)
The counterargument would of course be that bandwidth is so close to being infinite, that in effect it is infinite and should be treated as such legally. But if I were a lawyer attempting to prove "theft", I'd definatelly focus on the hard distinction between finite and infinite.
Seeing past his bluster to see his (still flawed) point
In spite of his confusion over the legal definition of theft and his highly flawed analogy between cable "thieves" and unauthorized tetherers, I think I can at least see his point. I'm not saying I agree with it or that it makes sense in the current marketplace; just that I understand his reasoning. Which is...
While it may not be "fair" that the service providers put undue restrictions on how you use the bandwidth they provide (and you pay for), you agreed to the terms ahead of time, so you're breaking the terms of that agreement if you tether.
The problem with this of course is the implication that you can go elsewhere if you don't like terms of service. That would be great if there was actual competition in the marketplace. But there isn't. So, while unauthorized tethering may be a legal breach of terms of service, I personally think that, in the current environment, the unfairness of this term rises to the level of being unconstitutional. You can put anything you want in your TOS. It's doesn't mean that if it went to the supreme court, it would be upheld.
On the post: 'Go The F**k To Sleep' Accused Of Copying Imagery
Re: Re: Re: Re: Re: I never accused any one of stealing...
I guess the question is what can an artist use as reference.
IANAL, but I believe that from a legal standpoint, the question is about the specific expression and the transformative nature of a given piece of art rather than what was used as a reference. In other words, it would be perfectly legal for someone to use another's art -- be it a picture, a painting, or a rendering -- as a reference (or for inspiration, if you like) as long as the expression of that work was different or it was transformed in some meaningful way.
It just feels wrong to me to take an original work that someone else did, paint my own copy of it (leaving the framing, lightning, and structure intact), and then sell it for huge royalty checks
I can certainly sympathize with your feelings. Being a common reader of TD, I sometimes come across cases where my initial feelings conflict with the law. However, there is a big difference between feelings, what is moral, and what is legal. If Mr. Cortes did use your work as a reference, I might think a bit less of his originality, but I wouldn't think of that as an immoral or even illegal act.
It's a blunt way to say it, but the fact is that copyright law was not designed to protect the feelings of artists. They were designed to incentivize the creation of art. If more and better art can be created in a world where people can reference other art as long as there is some meaningful transformation, then so be it.
On the post: 'Go The F**k To Sleep' Accused Of Copying Imagery
Re: Re: Re: I never accused any one of stealing...
I always appreciate when the topic of a TD post is able to reply in the comments, but I do have a comment of my own about the above. You stated this...
I do, however, think there is a big difference between using a photograph as a reference and an original artwork (that was not based on a photograph).
I'm sorry, but that's not a question; it's a definitive statement. Would you explain what you think the difference is and, more importantly, the relevance of this distinction in the question of whether there was anything wrong or illegal with what Mr. Cortes did?
On the post: Did Congressional Debate Over Patent Reform Bill Open Up A Backdoor For An Independent Inventor Defense?
Patent co-"owners"?
So, are you saying that an independent inventor could just use their own invention and not be found "guilty of infringement" or that they would also actually be co-"owners" of the patent and use it commercially?
Because if it's the former, it doesn't seem like that great a benefit. ("Yay! If I ever get cancer, I can use the cure that I invented, but I can't actually make any money from it.")
And if it's the latter, it seems like the level of complexity would be huge. Assuming that you could come up with a fair and reliable way to determine if an invention was truly independently developed, how would the co-owner thing work? Could the "new" inventor sue someone for infringement, possibly the same party that the original inventor had sued or was currently suing? Would the new inventor be entitled to any benefits from existing contracts with the original inventor or worked out in previous lawsuits involving the original inventor? Would the new inventor be able to license the patent to other parties, say to the original inventor's competition? If I trained someone who was otherwise completely ignorant of a particular technical field, put them in a "clean" environment, and they independently invented something in every day use, could we start suing people for infringing on that patent? Could the current owner of a patent do the same thing to get around their own patent expiring, thus leading to a perpetual patent?
I'm not saying that I'm against this idea. There are probably ways to get around the questions I'm asking. But I'm guessing one of the reasons that the "first to" model exists is to keep the whole thing simple, if not fair.
On the post: Collateral Damage: In The Hunt For LulzSec, FBI Takes Down A Bunch Of Websites
Blackstone's formulation
On the post: Once Again, The Freedom Of Information Act Is Proving To Be Just That: An Act
Re: Re: Re: Re: Re: What if...? And who?
Not all of your actions, but any that relate to your role as an agent for the government, no matter how many "sub" levels you are down in the process. So, for example, what you did on your own time as a government agent is private, but every single one of your e-mails on your government account is not. If you work for the IRS, the picture of your dead body (if there was one) would be private. But if you are a private citizen of another country, but you masterminded one of the largest massacres of innocent lives in human history which later warranted a military strike to kill you, the government's requirement for transparancy supercedes your right to privicy.
On the post: Once Again, The Freedom Of Information Act Is Proving To Be Just That: An Act
Re: Re: Re:
There's a big difference. I don't claim to be an expert on this process, but presumably, the FOIA employees have a deterministic process to identify the (secret) classification of any piece of information. Perhaps this process involves a request to outside agencies, but the point is that the FOIA employees are supposed to be responsible for ensuring that the overall release process is free of bias. The big difference is that if you leave the decision on whether to release something up to the very people who are affected by the decision, you have a non-deterministic process because the decision can (and most likely will be) be biased. It's like the fox watching the henhouse.
If Gates and crew just didn't want the photo released, all they had to do was categorize it at top secret. That fact that they broke the procedure (if not the law) by taking over the whole approval process seems to indicate that they wanted to circumvent the controls that had been put in place.
On the post: Once Again, The Freedom Of Information Act Is Proving To Be Just That: An Act
Re: What if...? And who?
Who should be held responsible for a terrorist attack? Uh...the terrorists?
The guilt would have to fall upon the one requesting the picture.
Do you also think that rape victim's are to blame because they were "asking for it" by the way they dressed? And do you think that Alexander Graham Bell should be held accountable for every prank phone call? Here's a novel idea, what if we held people accountable for their own actions instead of placing the blame on others?
In reference to this particular case, I'd much rather have a government that was open by default (and deal with any negative repurcussions) than to have a government that not only hid things by default but hid the way that they hide things. More information is better for democracy, not worse. And the good news is that it's going to just get harder and harder for the government to keep information secret anyway.
On the post: Once Again, The Freedom Of Information Act Is Proving To Be Just That: An Act
Re:
Tim didn't say that it did, so what's your point?
What is so difficult to understand about that?
The violation which is the focus of the post isn't that the photo is being withheld, but the nature in which it's being withheld. Specifically...
"In direct violation of the FOIA terms, it looks as if these requests are being handled by Robert Gates and his staff, rather than the non-partisan FOIA employees who are supposed to be handling them"
So, what's difficult to understand is how the DoD, with approval from the Obama administration, is so blatantly allowed to break the law. If the photo has been tagged "secret" as you say, then the normal FOIA process woudl apply and it could be withheld.
On the post: Bill Clinton Thinks The Internet Needs A Taxpayer Funded Ministry Of Truth
Re: Re: Info as an alternative to new laws
Absolutely yes. Because it's the lesser of the two evils between stupid laws and biased PSAs.
What are the criteria used to define the parameters and which department would be responsible for posting said information?
Let Congress argue and bicker over which topics to promote or what misinformation to debunk. The more time they're doing this, the less time they'll have to create stupid new laws that have a direct impact on what I can and can't do.
Have you head the expression, "To a man with a hammer, every problem looks like a nail."? Well, this applies to Congress. The only tool that they have is creating a new law. In order to justify their own existance, politicians have to create new laws. After passing yet another stupid new law, members of Congress feel like they can go back to their home state and say, "See what I did! I helped! I passed a new law that solves [insert panic topic de jour here]."
This need for justification isn't going to go away. Like children, we have to give Congress something to do to keep them occupied so that they don't get themselves (and more importantly, us) into trouble. If this means creating a government agency, even a large one, the mission of which was to publish information and debunk misinformation, then so be it.
On the post: Bill Clinton Thinks The Internet Needs A Taxpayer Funded Ministry Of Truth
Info as an alternative to new laws
What if there was a new tool in their toolbox to allow for addressing these issues without a new law? I personally wouldn't have a problem with a government agency that proactively tried to publish the results of the research that the government already pays for. For example, would you rather have a new law that bans texting while driving or some government agency buying some web and TV ads explaining the associated dangers? And yes, any organization can be politicized, but even a biased message is better than a ban.
On the post: The Stupidity Of 'You Must Be A Criminal' Copyright Taxes: The SD Card Edition
Canadian Private Copying Collective?
On the post: Why Does Hollywood Insist On Making Online Movies So Annoying?
24 + 2
Amen, brother. I got burned by this the first (and only) time I rented a movie online. Things start to calm down around my house at about 8:30, so if I'm going to watch any TV, this is when it starts. So, one night, at about 8:30, I start watching the rented download. But I didn't finish it, so the next night, at about 8:30, I sit down on the couch and go to restart the movie. But of course, I'm trying to watch the movie at the very time it's expiring!
If they were intentially trying to frustrate their customers, they couldn't have done a better job. Why not make the expiration 24 hours plus the average length of a movie? Are they really thinking that people should pay twice to watch a movie across two days? Are they being stupid or evil?
On the post: Why Red Hat Is Wrong That It's Better To Just Pay Patent Trolls Sometimes
Kidnapping
The difference, I think, with settling with a troll is that you're not just making it worse for your fellow citizens, but for yourself. As Mike pointed out, settling with trolls may be good in the short term, but you're setting yourself up for being sued for the lifetime of your company.
I know that it's the nature of people (and corporations) to focus on short term gains, but I still don't see why companies don't draw a line in the sand and say "No, we will never settle with anybody, ever over a frivolous patent lawsuit." Sure, there'd be some additional costs up front, but eventually the trolls would just move onto easier targets i.e. companies that were stupid and shortsighted enough to actually give into the demands of the trolls.
On the post: Is Tethering Stealing Bandwidth?
Re: Re: Devil's advocate
What you're either ignoring or simply failing to take into account is that the agreement was known before hand. It's not like the phone company is coming along after the fact and making up rules as they go. If you sign a contract that says you are not allowed to tether without paying extra and you tether without paying extra, then you've breached the ToS. If you rent a bike and agree not to leave the neighborhood and then proceed to leave the neighborhood, then you've breached the ToS.
On the post: Is Tethering Stealing Bandwidth?
Re: So Silly
I'm not sure if you're being intentionally deceptive or really don't understand the difference between an agreement made before receiving service and an ex post facto restriction. Your analogy if flawed. It is not like a gas station calling you up after you purchased gas and telling you about their restrictions. To fix your analogy, it would be like a gas station that made you sign a contract before you bought gas that you were not allowed to leave the state, etc. If this were to actually happen, you'd just go across the street and buy your gas there. But the obvious problem is that there isn't the kind of competition with data carriers as there are with gas stations.
On the post: Is Tethering Stealing Bandwidth?
Re: Re: Devil's advocate
For the simple reason that you agreed not to use it in specific ways. And if you do use it in those specific ways, you've breached the ToS.
if you use the bike in Boston, it will cost you $.75/mile to ride it. If Manchester, NH, its $1.34/mile.
The only reason that bike manufacturers don't apply onerus terms of service restrictions on bikes like you suggest is that there is actual competition in the bicycle market and people wouldn't stand for it.
As a service to you, we offer free, with no charge, the ability to store it in your house 24/7 as long as you don't look at it or think about it.
You don't have to convince me how silly charghing for tethering is. I know it's silly. The point of my post is to say that there is at least a logical argument for unauthorized tethering being theft.
On the post: Is Tethering Stealing Bandwidth?
Re: Re: Seeing past his bluster to see his (still flawed) point
I don't have links, but as I recall one of the common points that Mike makes is that if the government focused on creating a fair marketplace, then they wouldn't have to spend so much time addressing all of the little anti-competative issues that come up. Because they simply wouldn't happen in a truly fair marketplace. If I were a conspiracy theorist, I'd say that it was a conscious effort on the part of politicians to keep themselves looking busy to justify their existance.
On the post: Is Tethering Stealing Bandwidth?
Devil's advocate
Yes, because you are depriving another party of a finite resource. If you steal someone's bike, that person doesn't have the ability to use that bike, so it legally qualifies as theft. But if you make an illegal digital copy of a song, it's copyright infringement, but not theft because the owner still has access to the song. Unauthorized tethering is more akin to taking someone's bike because while bandwidth may be near-infinite, it's not actually infinite, so you are in fact depriving the owner the use of that bandwidth (as described in your Terms of Service agreement.)
The counterargument would of course be that bandwidth is so close to being infinite, that in effect it is infinite and should be treated as such legally. But if I were a lawyer attempting to prove "theft", I'd definatelly focus on the hard distinction between finite and infinite.
On the post: Is Tethering Stealing Bandwidth?
Re: _SIGH_
Hey, that's a great analogy. I'm surprised someone didn't think of it first.
On the post: Is Tethering Stealing Bandwidth?
Seeing past his bluster to see his (still flawed) point
While it may not be "fair" that the service providers put undue restrictions on how you use the bandwidth they provide (and you pay for), you agreed to the terms ahead of time, so you're breaking the terms of that agreement if you tether.
The problem with this of course is the implication that you can go elsewhere if you don't like terms of service. That would be great if there was actual competition in the marketplace. But there isn't. So, while unauthorized tethering may be a legal breach of terms of service, I personally think that, in the current environment, the unfairness of this term rises to the level of being unconstitutional. You can put anything you want in your TOS. It's doesn't mean that if it went to the supreme court, it would be upheld.
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