Who wants to be an ISP?
First Belgium, now India, and France – ISPs are on the wrong end of what appears to be a growing trend towards liability and responsibility for them in cases of online copyright infringement.
Who would be an ISP? What can they do to protect themselves?
Is it the same as sanctioning the paperboy or newsagent for content in the local newspaper?
3 Comments on “Who wants to be an ISP?”
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Come, come to the United States. We will welcome you with open arms. We will grant a safe harbor under DMCA Copyright Act Sec. 512 to any ISP that:Adopts, implements, and informs its subscribers of its policy for terminating service to users who are repeat copyright infringers;Adopts standard technical measures used by copyright owners to identify and protect copyrighted works; andDesignates an agent to receive notification of claimed infringements from copyright owners, and registers that agent with the Copyright Office.Basically, if you’re willing to give up your customers, and you don’t review anything we’ll let you walk!There are two different types of ISPs:”an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”any “provider of online services or network access, or the operator of facilities therefor.”As long as it acts as passive conduit, ISPs falling under definition 1 have a safe harbor against transmission and transient storage of copyrighted works.ISPs falling under definition 1 & 2, have a safe harbor for system caching, storing materials for users, and for information location tools. For these 3 safe harbors, the ISP must not know or have reason to know that the material cached, stored, or located is infringing.To give an example, Napster was almost an ISP under definition 1 giving it the strongest protection, but failed because the copyrighted material, music, was not passing through Napster’s pipes but between the pipes of individual users making it not a passive conduit. Napster would have received protection under the final safe harbor because it was providing an online service, but the facts were such that Napster knew and had reason to know that copyrighted material was being located by their software.My professor on IP law is one of those law & economics guys who professes that IP rights are all about finding the proper balance of protection and use that result in the greatest net economic benefit to society. The Safe Harbor Provisions are explicit that they are in US copyright law because the absence of safe harbors could severely impact the growth of economic activity on the internet. Take note Belgium, India and France!
Will – thanks very much.Great Comments.Do you advocate that other countries should impliment DMCA-like legislation?It’s the ‘standard technical measures’ that seem to be posing most difficulty. ie – they keep getting more onerus on the ISPs…
The “standard technical” measures standard is quite vague… and they probably will keep getting more onerous as the standard rises, but a safe harbor is better than throwing ISPs, the gateways of e-commerce, to the wolves.The US is more laissez-faire than the French, and other nations, in regulating the internet, and if more DMCA-like legislation provides safe harbors to ISPs, then I support that legislation. The web became huge, very fast because of the lack of regulation, and further regulation will only stymie innovation, as the theories go…