Tuesday, July 11, 2006

Don't shoot the messenger, use him to send a message back?

Fascianting stuff about the role of ISPs in the fight against file sharing, via ars technica:

"Stepping up its campaign against illicit file-swappers, the British Phonographic Industry (BPI) has moved from targeting individual users to putting pressure on their ISPs. The BPI has just announced that 59 accounts suspected of large-scale piracy have been reported to two ISPs, which are expected to deal with the issue. 17 requests went to Tiscali, while another 42 were sent to Cable & Wireless.

The ISPs offer no guarantee that anything will be done, but the BPI wants to move faster against suspected file-swappers than is possible in the court system. They also want to paint the ISPs as complicit with the swapping through their own inaction. As they put it, "While the BPI retains the right to pursue cases against individual uploaders, the move against ISPs who have so far failed to take effective steps to stop illegal filesharing marks a significant development in the BPI campaign—allowing the record industry to deal with a greater volume of cases more quickly and efficiently." "

Oh how interesting. What's the legal position if the ISP doesn't do anything? or to put it another way, is there more than an arguable ethical duty on the ISP to investigate and taken its own action against the alleged filesharers?

Well, if the ISP gets told often enough that it has filesharers on its network (with dates and filenames and megs uploaded etc etc), and doesn't take steps to remove them, could it have constructive knowledge of illegal activity, and could it thus lose the benefit of the general ISP immunity defnce under the E-Commerce Directive Regulations? This is much the same kind of argument I toyed with making against eBay some while back.

Of course, before an ISP could even be potentially liable in civil damages, if not in criminal law, theer would have to be liablity under copyright law. Could an ISP that gets told off often enough for harbouring fileshareres be "authorising" or "inducing" copyright violation, as was successfully argued against KaZaa and Grokster in Australia and the US?

Far fetched perhaps.. but an interesting thought..

And of course, in the real world, it's a lot easier to scare ISPs with far fetched theories of legal liability than it is to convince a court of it :-)

No comments: