Because of an ambiguity in a 1998 copyright law, Internet service providers are at loggerheads with copyright owners over the extent to which they must police their subscribers peer-to-peer file-sharing activities.
The conflict has intensified in the last few months, as entertainment companies have started using monitoring software that associates a users Internet Protocol (IP) address with the time at which it detects the user sharing copyrighted material using a service such as Gnutella. Entertainment companies, as well as private policing outfits such as Copyright.net, are taking that data to ISPs and demanding that they take action against — and, in some cases, terminate service to — users who are sharing copyrighted material over the providers networks.
ISPs, however, say that they are reluctant to terminate subscribers with less-than-conclusive evidence of infringing activity. Earlier this year, for example, Copyright.net — a Nashville, Tenn., content aggregation company that tracks the IP addresses of file sharers on behalf of copyright owners — sent thousands of notices listing IP addresses that it had traced from Napster activity, and requesting personal information about the corresponding subscribers. Some ISPs were enormously displeased with this tactic.
"We wrote back and said, We are not required to give you this information, " says Sarah Deutsch, vice president and associate general counsel at Verizon Communications.
For now, ISPs and copyright owners are at a stalemate. But eventually, the issues of contention will have to be clarified by the U.S. Congress or through the courts, both sides say.
This is the latest hot spot to break out as a result of the controversial 1998 Digital Millennium Copyright Act, a complex law that attempts to address the issue of copyright protection in the Internet age. The law contains a provision intended to assuage the concerns of ISPs, which didnt want to be in the position of policing their networks for copyright infringers. This so-called "safe harbor" provision outlines procedures that, if followed, protect ser-vice providers from liability for contributory copyright infringement.
At the heart of the DMCAs provisions for ISPs is a procedure known as "notice and take down," in which content owners provide an ISP with a notice specifying an infringing work thats been made available on their network, along with proof of ownership of copyright. In response, service providers must promptly disable access to the infringing material.
While the entertainment and ser-vice provider industries agreed on this basic framework when the DMCA was negotiated, conflicts have arisen over its real-world application. ISPs complain that they are being forced into the middle of disputes between copyright owners and alleged infringers — which, the ISPs say, is precisely what the DMCA was supposed to prevent. They also grumble about vague or inappropriate take-down notices.
"Certain parts of the content community are trying to push parts of the DMCA to get a result they are not entitled to," Deutsch says.
Some copyright owners counter that ISPs are dragging their feet on terminating file-swapping users because the service providers are enjoying the increasing demand for broadband, driven by bandwidth-sucking P2P services.
The situation heated up in February, when a U.S. appeals court ruled in favor of ALS Scan, a company that distributes adult photographs. The ruling required RemarQ Communities, a provider of Internet collaboration services that has since been acquired by Critical Path, to remove entire Newsgroups from its service because they contained many infringing images owned by ALS Scan. This decision aroused a hue and cry from ISPs, which said that it undermined their safe harbor under the DMCA. RemarQ should only be required to remove the infringing works, they said, not an entire Newsgroup. The case is pending further appeal.
Meanwhile, a new challenge to the notice and take down procedure has erupted in the form of P2P file swapping. Content owners and ser-vice providers are more or less in agreement on how to apply the law to material posted on subscribers Web sites and on Newsgroups. But tangles arise when attempts are made to apply the DMCA — which was drafted before Napster existed — to P2P file sharing, because, unlike a public Web page or Newsgroup, the content resides on an individual users hard drive.
Some members of the content industry say that the issue is cut and dried: Files designated for sharing on a P2P service are posted on an ISPs network, and are therefore subject to the notice and take down provision of the DMCA. "When a user connects using an address of the ISP, they become a node of that ISPs network," says Richard Rose, vice president of legal affairs at Copyright.net.
But some ISPs contend that what resides on an individuals hard drive is not under their jurisdiction. "We have no right to go into someones home and take out someones hard drive and PC," says Craig Silliman, director of WorldComs network and facilities legal team.
ISPs also note that those content-tracking services, now in use by private companies and the Motion Picture Association of America, trace shared files to IP addresses, not to individuals. "IP addresses dont necessarily correspond to users," Verizons Deutsch says.
Adding to the confusion, the DMCA also specifies that, to be eligible for safe harbor protection, ISPs must have a policy for terminating "repeat infringers." Copyright.net has taken the position that — in light of the appeals courts decision in the Napster case upholding the finding that Napster was enabling massive contributory infringement — all of Napster users are infringers. Thus, Rose argues, if multiple swaps can be traced to one IP address, an ISP must apply a termination policy.
But its not that simple, ISPs say. They say that the law did not intend to force them to terminate subscribers based only on allegations of repeat infringement, but no real proof. "There is a distinction between alleged infringers and repeat infringers," says Chris Hansen, EarthLinks legal representative.
Entertainment companies are sending notices directly, alerting ISPs to their users file-sharing activity. In April, the MPAA tested software for tracing Gnutella swapping of current theater releases. The test run resulted in 240 letters to ISPs containing dates, times and IP addresses associated with infringing use of Gnutella. Since June 1, the software has begun monitoring for all movie titles submitted by MPAA members.
Hemanshu Nigam, the MPAAs director of worldwide Internet enforcement, says that it has received a "tremendously positive" response. "We got letters saying, This is a great idea, because its helping us monitor our own broadband subscribers, making sure theyre using it in an appropriate way, " Nigam says. "Were not saying to an ISP, Terminate, terminate, terminate. Were saying, Educate, educate, educate. " He would not say how the MPAA would respond to ISPs that dont comply.
So, until courts clarify the situation, each ISP must balance the risks of being sued by entertainment companies and alienating subscribers.
Deutsch says that Verizon has chosen to not comply with requests to terminate users based on material residing on their hard drives. Hansen says that EarthLink is making its decisions on a case-by-case basis, but he adds "I cannot think of an example of us canceling a subscriber, merely based on repeat allegations of infringement." WorldCom declined to comment.
Excite@Home is sending cease-and-desist notices to subscribers the MPAA tags. "We get 99 percent compliance," says Harris Schwartz, Excite@Homes senior manager of network policy. "We discuss things with the subscriber and it becomes an educational issue with them."
Still, it looks like tough times ahead for ISPs trying to figure out where they sit on the copyright map. Fred Von Lohmann, a copyright lawyer at Morrison & Foerster in San Francisco, is advising an ISP client on the issue. So far, he says, his client is trying to respond on a case-by-case basis. "They are caught in the middle. They dont want to antagonize anyone," Von Lohmann says. "My sense is there arent many ISPs who have made a bright-line decision yet."