Year in Review: ISP Liability

Following directly on from the earlier posts regarding the Higher Education Act and individual lawsuits for file sharing both in the United States and in other countries over the past 12 months, there have been additional events which have effected the position of internet service providers. In the United States legislation was passed with respect to higher education institutions and in Australia a case was commenced questioning the protection of the safe harbours afforded to ISPs under the Copyright Act.

United States
The response to file sharing and copyright infringement has varied enormously across campuses in the United States. As mentioned in earlier posts, some universities are attempting to block the subpoena process, others such as Stanford are disconnecting students and charging large reconnection fees.

One university, Bowling Green State University introduced a three strikes scheme whereby first time offenders were disconnected from the internet for 24 hours, second time offenders were disconnected for 2 weeks and third time offenders were disconnected for the remainder of the semester.[1]

In legal proceedings the universities were also characterised as uncooperative by representatives of the content industry because they claimed that responding to the subpoena and pre litigation letter process was creating an undue burden on their resources.[2] Despite the dramatic increase in the number of subpoenas and letters received on campuses, the content industry argued that previous cooperation should be taken as evidence of capability to facilitate this process.[3]

In August 2008 the Higher Education Act was passed which required all universities and colleges to take steps to address illegal file sharing on campus.[4]

While the legislation does not stipulate the specific requirements or prevention measures that must be implemented, the expectation is that at a minimum this will include an education campaign regarding the computer use policies of the institution, and may eventually lead to the imposition of p2p monitoring programs, filtering, providing access to legal services and the use of traffic shaping technology.[5] Speculation suggests that in the event that there is not widespread adoption of technological prevention measures that the content industry will lobby to make these mandatory.[6]

A study released in October 2008 which reviewed data across 321 institutions estimated the cost of implementing the requirements of these laws to be in the vicinity of $US350,000 to $US500,000 annually for each college or university.[7]

There was some concern that these policies would unfairly discriminate against colleges that do not have on campus accommodation as they would be required to implement the same prevention measures despite the far lesser likelihood that students would be downloading illegally.[8] In a further study conducted by Educause in October 2009, of the campuses that have residence halls, 97.9% of the 1016 surveyed offered internet connections with 85% of those being at speeds greater than 10Mbps and 44% 100 Mbps and faster.[9]

The Educause survey also highlighted that 15% of US colleges and universities currently provide campus sponsored music or movie download services with a further 17% planning on introducing them.[10] Some 39% of doctoral colleges which are typically the largest universities, already offer free download services.[11]

In response to the changes introduced by the Higher Education Act, Illinois State University began prohibiting the use of file sharing software on its network and released BirdTrax in August 2008, a website directing students to legal download services.[12]

Australia
There was similar pressure on ISPs in Australia.

There were numerous calls from the content industry for commercial internet service providers to become more heavily involved in policing the content transferred on their network. However, Peter Coroneos head of the Australian Internet Industry Association rejected this suggestion and stated that the disconnection of file sharers from the internet was seen by them to be a disproportionate response.[13]

In addition to this, a case was also commenced which seeks to test further the safe harbour provisions afforded to ISPs under the Copyright Act.[14] Legal action was commenced by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network against iiNet for failing to prevent its customers from engaging in illegal file sharing.[15] The action was filed in November 2008 in the Federal Court of Australia with proceedings expected to commence on 17th December 2008.[16]

Expansion of Responsibility
The expansion of ISP responsibility for content passed over networks was referred to in a discussion paper called The Future of Copyright released by the Cato Institute in June 2008. In the article written by Rasmus Fleischer, which concerns the ever increasing lobbying efforts of the content industry to seek stronger and stronger copyright laws, it was noted that ISP responsibility is not something conveniently attributed to large corporations:

Yet in the name of ISP responsibility, virtually any Internet user might be called to account by the recording industry. Here's why: In discussions about so-called ISP responsibility, it is crucial to remember that big telecom companies are far from the only existing "operators of electronic communications networks and services." This is the actual definition of an ISP, used within the European Union bureaucracy, but by this definition, you may be one, too. The U.S. Digital Millennium Copyright Act is equally vague: It defines a "service provider" as a "provider of online services or network access, or the operator of facilities therefor," leading many to wonder whether libraries, employers, or private individuals operating routers might also qualify as ISPs.Given such a broad definition, any company or person sharing connectivity, as well as anyone hosting a blog or a web forum, could, in the name of "ISP responsibility," be obligated to register the identities of users and to deliver them to copyright enforcers on request. The range of possible abuses is enormous. Attempts to save an already broken policy will mean an ever more absurd sequence of follow-up regulations.[17]


[1] TechDirt, Bowling Green University Enforces New Three-Strikes Anti-P2p Plan (23 October 2008) <http://www.zeropaid.com/news/9823/Bowling+Green+University+Enforces+New+Three-Strikes+Anti-P2P+Plan> at 29 October 2008
[2] EFF Deeplinks, Universities Quietly Fighting Back Against RIAA Tactics (11 August 2008) <http://www.eff.org/deeplinks/2008/08/universities-quietly-fighting-back-against-riaa-ta> at 22 August 2008; TechDirt, Universities Realize That The RIAA Is Taking Advantage Of Them In Lawsuits On Students (12 August 2008) <http://www.techdirt.com/articles/20080812/0229461957.shtml> at 20 August 2008; ZeroPaid, Universities Penalized for Past RIAA Cooperation (14 August 2008) <http://www.zeropaid.com/news/9698/Universities+Penalized+for+Past+RIAA+Cooperation> at 20 August 2008; The Chronicle of Higher Education, Antipiracy Campaign Exasperates Colleges (issue date: 15 August 2008) <http://chronicle.com/free/v54/i49/49a00104.htm> at 12 August 2008
[3] EFF Deeplinks, Universities Quietly Fighting Back Against RIAA Tactics (11 August 2008) <http://www.eff.org/deeplinks/2008/08/universities-quietly-fighting-back-against-riaa-ta> at 22 August 2008; TechDirt, Universities Realize That The RIAA Is Taking Advantage Of Them In Lawsuits On Students (12 August 2008) <http://www.techdirt.com/articles/20080812/0229461957.shtml> at 20 August 2008; ZeroPaid, Universities Penalized for Past RIAA Cooperation (14 August 2008) <http://www.zeropaid.com/news/9698/Universities+Penalized+for+Past+RIAA+Cooperation> at 20 August 2008; The Chronicle of Higher Education, Antipiracy Campaign Exasperates Colleges (issue date: 15 August 2008) <http://chronicle.com/free/v54/i49/49a00104.htm> at 12 August 2008
[4] CNet News, Mixed reviews for illegal file-sharing on campus (1 August 2008) <http://news.cnet.com/8301-1023_3-10005089-93.html> at 12 August 2008; Los Angeles Times, Piracy provision aims at universities (16 March 2008) <http://www.latimes.com/technology/la-na-piracy16mar16,1,3958660.story> at 18 March 2008; ZeroPaid, US Congress Pass Anti-Campus File Sharing Requirements (12 February 2008) <http://www.zeropaid.com/news/9259/US+Congress+Passes+Anti-Campus+File-sharing+Requirements> at 13 February 2008; TechDirt, House Approves Bill To Require Universities To Offer Students Music Services Politics (8 February 2008) <http://www.techdirt.com/articles/20080207/232136204.shtml> at 8 February 2008
[5] CNet News, Mixed reviews for illegal file-sharing on campus (1 August 2008) <http://news.cnet.com/8301-1023_3-10005089-93.html> at 12 August 2008; EFF Deeplinks, Congress Bows to Big Content, Scapegoats Higher Ed (4 August 2008) <http://www.eff.org/deeplinks/2008/08/congress-bows-big-content-scapegoats-higher-ed> at 7 August 2008
[6] TechDirt, Congress Moves Forward With Plan To Make Universities Copyright Cops (31 July 2008) <http://www.techdirt.com/articles/20080731/0259111850.shtml> at 6 August 2008
[7] ZeroPaid, Anti-P2p Higher Education Act May Cost Some Colleges $500,000 Annually (24 October 2008) <http://www.zeropaid.com/news/9817/Anti-P2P+Higher+Education+Act+May+Cost+Some+Colleges+%24500%2C000+Annually> at 25 October 2008
[8] ZeroPaid, Anti-P2p Higher Education Act May Cost Some Colleges $500,000 Annually (24 October 2008) <http://www.zeropaid.com/news/9817/Anti-P2P+Higher+Education+Act+May+Cost+Some+Colleges+%24500%2C000+Annually> at 25 October 2008
[9] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[10] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[11] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[12] ZeroPaid, ISU Begins Blocking P2p, Launches 'Bird Trax' (27 August 2008) <http://www.zeropaid.com/news/9720/ISU+Begins+Blocking+P2P%2C+Launches+%27BirdTrax%27> at 28 August 2008
[13] ABC, ISPs called upon to crackdown on pirates (5 August 2008) <http://www.abc.net.au/news/stories/2008/08/05/2324663.htm?section=entertainment> at 12 August 2008; ZeroPaid, Australian ISPs Still Reject Idea of Becoming Copyright Police (9 August 2008) <http://www.zeropaid.com/news/9690/Australian+ISPs+Still+Rejects+Idea+of+Becoming+Copyright+Police> at 12 August 2008
[14] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[15] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[16] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[17] TechDirt, Copyright Has Stretched So Far That It Has Broken (10 June 2008) <http://www.techdirt.com/articles/20080609/1950311357.shtml> 13 June 2008