By David Meyer, 12 July 2007 10:53
NEWS
The Internet Service Providers' Association (Ispa) has repeated its assertion that ISPs should not be responsible for any illegal file-sharing that takes place over their networks.
Speaking yesterday in the wake of a controversial ruling in a Belgian court and following comments made by the Conservative leader David Cameron, a spokesperson for Ispa maintained ISPs should not be "set up to play judge and jury" over alleged copyright infringement.
Last week a Belgian court ruled that the ISP Scarlet - formerly Tiscali - had the technology available to it to block or filter copyright-infringing material being sent over its network via peer-to-peer (P2P) traffic, and had six months to start doing so.
The judgement drew praise from John Kennedy, chief executive of music industry body the IFPI, who claimed it proved "the internet's gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks".
The court's decision - which sets a precedent in European law but seems likely to be challenged - will not be repeated in the UK anytime soon, according to telecoms lawyer Danny Preiskel of Preiskel & Co. "I think we are a way away from reaching a similar decision in the UK in imposing such liability," he said, adding that such a case here would be "fiercely resisted" by ISPs.
But ISPs in the UK are opening themselves up to some degree of liability by moving away from being providers of "pure conduits", as they might be responsible for anything defamatory contained within the value-added content many are now trying to sell to their customers, added Preiskel. However, he confirmed P2P steered clear of this pitfall by virtue of the fact that no content is hosted.
An Ispa spokesperson agreed, saying "ISPs are recognised in the eCommerce Directive (2002) as mere conduits of information".
The spokesperson also responded to David Cameron's recent claims that, if ISPs could remove child pornography from their servers, they should also be willing to shut down the transmission of copyright-infringing material: "We are talking about different things here - child pornography is criminal and copyright infringement can be a civil case.
"ISPs shouldn't be set up to play judge and jury. What we wouldn't want is corporate censorship. Any kind of censorship of the internet has to be at the government level - ISPs are not law enforcement. We understand that ISPs play a part in combating instances of illegal activity on the internet, which is why we engage with rights holders and work with government authorities on that basis but we wouldn't say we're the gatekeepers of the internet. The people responsible for unlawful content going up on the internet are the people who put it there."
David Meyer writes for ZDNet UK
Comments
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1. james Button
Yes - ISP's should NOT be held responsible for policing what is transmitted, any more than the government should be held responsible for what is transported on the roads, and Airlines held responsible for what they transport.
HOWEVER ISP's should be held responsible for what they allow on their lines without a valid source identity.
After that, it's up to the courts to decide if it is legally and morally, reasonable, proper, and lawful for the ISP to be required to divulge the id, and input location of the person/organisation associated with specific id's - even if that is just the name of another ISP/transport organisation.
As - in they should be able to give the authorities the name and address of whoever it is that is sending me all this spam and malware
2. Simon
Belgian Bananas !
There is a big difference between policing wat is stored on an ISPs servers and policing what is passed over the network.
To start with, if my ISP decides to snoop on my traffic and block some of it then they would themselves be committing criminal offences I believe ! Secondly, if the traffic is encrypted then it's impossible for them to see what it is anyway - that's why all the P2P packages now support encryption !
And before anyone chirps up that I much be acting illegally to make such a comment - I do use P2P but only for legal purposes such as downloading the latest Linux installers etc.
3. Tim Jackson
Aren't we slightly missing the point.
ISP's may well NOW be able to discriminate between P2P traffic and other traffic, maybe they can discriminate between legal and illegal P2P activity, although I wouldn't know how.
But I'm sure that if such barriers were put in place to block the traffic, it would not take the community long to devise a protocol which did not get blocked.
This looks to me like another ill-advised security arms race, that the white hats can't win. A bit like ID cards really.
4. Joe Whitehead
"if ISPs could remove child pornography from their servers, they should also be willing to shut down the transmission of copyright-infringing material"
CP on the servers is not the same as CP on the network. Of course it's very likely that anyone posting CP on the ISP's lines using BT/HTTP/whatever will eventually get a sledgehammer knock on the door. If the ISP has illegal files on it's own servers, then yes, it is liable if they refuse/fail to remove it regardless of rather it's a civil or criminal offense to serve them.
5. Steve Clendenon
Having ISPs to govern the internet is like ordering a car manufacturer to govern their purchasers how they use their cars i.e. speeding, drunk driving, driving down the wrong side of a dual carriageway. It has not been done since cars have been made. We can extend this responsibility to Medical Schools for malpractice of their grads.... how far can we go with this example....
6. karen challinor
so by much the same token mobile phone service providers should be held accountable for the content of calls and SMS messages sent using their systems and should develop systems to censor specific words, which will lead to the content of calls being indistinguishable from the ringtone
the post office should be held accountable for the content of private letters and open each and every letter before going through them with a redacting pen
still the government doesn't have a very good track record for listening to reason and NOT implementing stupid ideas, especially when being pressured by niche groups with lots of money who are trying to protect what are essentially monopolies embedded in outdated business models