Friday, 27 June 2008

Who's to Blame - You or Your ISP? [IEEE Question]

The position of the British Government[1] with its recent moves to call Intermediaries to action in the formation of a voluntary body to stop Intellectual Property violations is a start to the reforms that are needed. The problem is well defined in this call for reform, however, the call for voluntary changes are unlikely to bring about the required changes. Intermediaries have the capability to stop many of the transgressions on the Internet now, but the previous lack of a clear direction and potential liability associated with action rather than inaction[2] remains insufficient to modify their behaviour. Even in the face of tortuous liability, the economic impact of inaction is unlikely to lead to change without a clear framework and the parallel legislation that will provide a defence for intermediaries who act to protect their clients and society.

1 The French President announced a plan on the 23rd Nov 2007 to curb Intellectual property theft and other Internet related crimes. He stated that: "Today an accord is signed and I see a decisive moment for the civilised internet. Everywhere, in the US, UK and others, industry and government have tried... to find a permanent resolution to the problem of piracy. We are the first, in France to try to build a national grand alliance around clear and viable proposals." Geoff Taylor of the British record institute stated that: "We will continue to pursue voluntary arrangements, but unless these are achieved very soon we believe that the UK Government must act, as the French government has, to ensure that the urgent problem of internet piracy is tackled effectively."
2 In the US, the most obvious example of this action can be found in the history of the Communications Decency Act. Congress directly responded to the ISP liability found in Stratton Oakmont, Inc. v. Prodigy Services, 23 Media L. Rep. (BNA) 1794 (N.Y. Sup. Ct. 1995), 1995 WL 323710, by including immunity for ISPs in the CDA, 47 U.S.C. § 230(c)(1) (2004) (exempting ISPs for liability as the “publisher or speaker of any information provided by another information content provider”), which was pending at the time of the case. Similarly, Title II of the Digital Millennium Copyright Act, codified at 17 U.S.C. § 512, settled tension over ISP liability for copyright infringement committed by their subscribers that had been created by the opposite approaches to the issue by courts. Compare Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552, 1556 (M.D. Fla. 1993) (finding liability), with Religious Tech. Ctr. v. Netcom, Inc., 907 F. Supp. 1361, 1372 (N.D. Cal. 1995) (refusing to find liability).; The fear of being seen as a publisher rather than mere conduit has resulted in many ISPs and ICPs to a state of inaction.

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