The conflict has intensified in the last few months, as entertainment companies have started using monitoring software that associates a user's 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 ââ,¬" and, in some cases, terminate service to ââ,¬" 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 ââ,¬" a content aggregation company that tracks the IP addresses of file sharers on behalf of copyright owners ââ,¬" 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 US 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 didn't 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 service providers from liability for contributory copyright infringement.
At the heart of the DMCA's 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 that's 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 ââ,¬" 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 US 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.
