Wednesday, March 19, 2008

ISP Liability

The past few weeks have provided quite a deal of turmoil for ISPs in many countries with a number of developments designed to reduce copyright infringement on their networks.

  • I have already posted on the many negative consequences of a three strikes policy. This was first raised a few months back in France, before gaining a significant amount of media attention in the UK. There have been reports that Australia, and now Japan will also seriously consider this as an option.
  • In Ireland four major labels have commenced a lawsuit against the ISP Ericom for failing to take steps to filter copyright material. Reports indicate that the ISP was not notified of any specific breaches but that the action is based on its general awareness that copyright infringement is occurring. Interestingly enough this case would not be possible in the United States or Australia given the safe harbour provisions introduced through the DMCA and associated negotiations.
  • In the United States content companies are not targeting ISPs through litigation, but have successfully pressured legislators for the introduction of filtering by universities and the offering of streaming subscriptions by tying the requirements to a funding Bill.
  • A recent court decision in Israel held that ISPs were required to block access to a BitTorrent search engine even though it was actually operated from the Netherlands. This follows on from the decision last year which saw The Pirate Bay blocked for a short time in Sweden and which in the end actually resulted in an increase in traffic to the site.
  • In Sweden there also appear to be moves to introduce the legal framework allowing ISPs to disclose the identities of file sharers more easily.

It seems Italy is the only country at the moment taking an opposing view, with a recent court decision determining that ISPs do not have to disclose users identities. This follows a decision last month which held that EU countries do not have to disclose the details of account holders unless there are provisions within that countries domestic law requiring such disclosures.

There are a number of reasons why ISPs should not be forced to, or even voluntarily, offer to filter their networks, to pass on infringement warnings and cut off users, or be required to disclose users identities.

These include the notion that independent communications carriers should not be liable for the activities of their users - telephone companies are not held liable for the activities of phone users, cars can be used as escape vehicles in serious crimes and yet car manufacturers are not held liable – and why? Because we recognise the difference between providing a product and being the person that uses it to commit a crime. We also recognise the importance of encouraging progress in these industries and the social benefits that arise from not legislating every possible restriction in exchange for the potential that might arise in an open, competitive environment.

There are also serious questions about the standards of the investigations, the ability for users to challenge decisions, the privatisation of censorship and many other issues. However it is when one really starts to analyse this debate that the most compelling reason surfaces.

It is too simplistic to say that these organisations are seeking to protect their copyrights. What they are actually seeking to protect is their business model and their control over an industry that no longer needs or desires it. All of this litigation and all of the associated costs are simply designed to artificially extend the life of a few very powerful corporations.

Free speech is not just a term, it is a fundamental quality and it is being jeapordised, around the world, as we speak, based on the poorest justification possible: money. And yet even with the implementation of all or any of these policies there will be enourmous opportunity to avoid detection and to continue to share copyright material. So the justification then becomes: some money, or maybe even, not much money.

Money is indeed the root of all evil - I know that for a fact.

The Register, Japanese ISPs agree three strikes-style anti piracy regime (17 March 2008) <> at 19 March 2008

TechDirt, Japanese ISPs The Latest To Bow To Pressure From The Entertainment Industry (17 March 2008) <> at 19 March 2008

ZeroPaid, Japanese ISPs to Ban File-Sharers from the Internet (18 March 2008) <> at 18 March 2008

Daily Yomiuri Online/Associated Press, Winny copiers to be cut off from Internet (15 March 2008) <> at 18 March 2008, Eircom taken to court over illegal music downloads (10 March 2008) <> at 19 March 2008

ZeroPaid, Record Labels Sue Irish ISP, Demand Music Piracy Filtering (12 March 2008) <> at 13 March 2008

YNetNews, Internet providers ordered to block file sharing website (3 June 2008) <,7340,L-3515275,00.html> at 10 March 2008

TechDirt, IFPI's New Strategy: Sue ISPs For Not Stopping File Sharing (11 March 2008) <> at 13 March 2008

ArsTechnica, "Year of filters" turning into year of lawsuits against ISPs (11 March 2008) <> at 18 March 2008

ArsTechnica, IFPI gets Israeli ISPs to block Hebrew peer-to-peer site (7 March 2008) <> at 19 March 2008

Los Angeles Times, Piracy provision aims at universities (16 March 2008) <,1,3958660.story> at 18 March 2008

ZeroPaid, US Congress Pass Anti-Campus File Sharing Requirements (12 February 2008) <> at 13 February 2008

TechDirt, House Approves Bill To Require Universities To Offer Students Music Services Politics (8 February 2008) <> at 8 February 2008

ArsTechnica, Tennessee legislation would turn schools into copyright cops (25 February 2008) <> at 28 February 2008

ZeroPaid, Tennessee Proposes Own Crackdown On College Campus File Sharing (28 February 2008) <> at 29 February 2008

Digital Music News, Pirate Bay Gets Shorted In Denmark, ISP Blocks Access (6 February 2008) <> at 19 February 2008

ZeroPaid, Danish ISP Decides to Fight Order to Block The Pirate Bay (15 February 2008) <>m at 17 February 2008

The Local, Sweden to clamp down on file sharing (14 March 2008) <> at 18 March 2008

ArsTechnica, Pirate Party rejects Swedish plan to snitch on file-sharers (16 March 2008) <> at 18 March 2008

ZeroPaid, From Privacy to Censorship - Activists Have Their Hands Full (15 March 2008) <> at 18 March 2008

TechDirt, A Modest Proposal: ISPs Should Stop Any Activity That Hurts A Business Model (31 January 2008) <> at 4 February 2008, Italian File-Sharers Let Off The Hook (17 March 2008) <> at 19 March 2008

EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <> at 7 February 2008

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