Best of the ISP-Lists

The Wrongs of Copyright

Everyone agrees that copyright laws must be enforced, but members of the ISP-Tech list ponder over tricky situations that occur when lawyers ask ISPs to be judge and jury in cases that the lawyers understand but the ISPs do not.

[July 3, 2002]

On the ISP-Tech list in June, VB queried,

"I know copyright law demands that an ISP remove infringing material from its servers when notified, but what action is the ISP required to take when a user is only accused of infringing? I just got a notice from Columbia Pictures informing me that a user was trading copies of the Spiderman movie using KaZaA, and demanding that I terminate their service. It was worded as follows:

'We have received information that an individual has utilized the above-referenced IP address at the noted date and time to offer downloads of the above-mentioned work through a 'peer-to-peer' service.

Since you own this IP address, we request that you immediately do the following:

1) Disable access to the individual who has engaged in the conduct described above; and

2) Terminate any and all accounts that this individual has through you.'

I can see being required to remove copyrighted material from my own servers, but how can I be expected to verify the content on an end user's machine?"

Some respondents suggested that the simplest thing to do is simply to terminate the service as requested:

[PF recalled] "I got basically the same e-mail. Since no subscriber is worth even the price of a phone call to a lawyer to figure out what to do, it is easier just to cancel them."

[KW agreed] "We have dealt with this twice. Both times, we notified the user in question, and warned them that we would drop them if we got another complaint. Both notices we got had log outputs of time/date, IP, and an output of the directory listing showing what was there. Visit www.chillingeffects.org for some excellent info on this type of stuff."

Others recommended holding out for something more official than a single e-mail:

[SS noted] "I'm not going to cancel a subscriber just on some anonymous e-mailer's say-so. At the very least, I expect a registered letter from an attorney."

[JP agreed] "Tell them to serve you with authentic legal court documents, and that you'll present them to your attorney for further review. Columbia Pictures' issue is with the subscriber, not with you. As a provider of communications services, you have no liability for how customers use your services."

[DD advised] "Under the Digital Millennium Copyright Act, notification has to be either via a digitally signed e-mail or registered mail. I don't do anything until I get the notification in one of those forms. In your case, I would write back and explain that this is a dialup customer and I have no access their computer. If they wanted to pursue the customer themselves, I would tell them that with a court order and $85 to cover the cost of research, I would supply that information. The DMCA provides them with legal remedies, but I don't think this is one of them. They are trying to get you to do their dirty work for free."

TH pointed out that it's worth making sure this kind of issue is covered in your acceptable use policy (AUP):

"We put something concerning this in our Acceptable Use Policy. If a company sends us information on the IP they located, we look through our RADIUS records and send them a warning. A second warning results in a disconnect. I have only had to disconnect one person, and that was to take down a porn site that was using copyrighted material. We only pursue those users who are brought to our attention: we do not do any active searching ourselves."

Still others added that, despite the expense, this might be a good time to check in with a lawyer:

[MS advised] "I don't think you have to do anything, but I would contact a lawyer."

[JP agreed] "While a visit to the attorney will cost a few hundred bucks, it is money well spent. It will help ensure that you are on solid legal ground, and you can make a much better decision on how to proceed."

— End