Online pirates
The record and software industries have routinely used this law against online music pirates who are offering MP3s on Web pages, for example. ISPs, which do not want to be caught in the type of lawsuit that threatens Napster with damages of millions of dollars, have generally been quick to comply.But peer-to-peer file swapping has changed the playing field. In that model - used by Napster and alternatives such as OpenNap and Gnutella - all of the content is located on individuals' computers.
ISPs only provide a connection to the Internet, and they do not look inside the data flowing through their subscribers' computers to tell what might be copyrighted.
The same software that allows individuals to trade files allows copyright holders to track them down, however. Although swappers are not broadcasting their names to the Net, software programs such as Napster or Gnutella expose numerical network addresses that can be traced back to an ISP.
For several months, groups of copyright holders have been using monitoring software to identify individuals on these networks. The Record Industry Association of America (RIAA) and Copyright.net, which represents music publishers, have used this information to try to persuade ISPs to stop their customers' actions.
Frank Creighton, the RIAA senior vice president in charge of anti-piracy efforts, says that this way is less intrusive - both in a privacy and an administrative sense - than issuing warrants to the ISPs for their subscribers' personal information and tracking down individuals themselves.
To date, all of the ISPs contacted in more than 120 cases of people running independent Napster servers on their computers have responded or immediately complied with the RIAA's requests, he says.
Creighton and executives at Copyright.net admit there is some ambiguity about how well the "notification and takedown" provisions of the DMCA fit a situation where content is not on an ISP's servers.
But each cites another provision of the copyright law, which requires ISPs to respond if there are multiple complaints from a copyright holder about the actions of one of their subscribers. Those who ignore this provision could lose their protections against lawsuits in other areas, they say.
"This is a threshold for (ISPs) receiving any kind of safe-harbor protections," said Richard Rose, vice president of legal affairs and business development for Copyright.net.
Decisions to make
ISPs are beginning to come to terms with the subtleties of the peer-to-peer situation. Most have complied with traditional takedown notices and are just realizing that the new model takes them away from familiar territory.
An EarthLink representative, while declining comment on specific instances, said the DMCA does not give the company responsibility for acting on complaints about content located on its subscribers' computers.
AOL Time Warner's America Online declined to comment on the issue. Verio, which has taken positions defending its subscribers' free speech in the past, said that it is "still looking into all the issues."
Perhaps the most vocal opponent of the copyright holders' actions has been USIIA's McClure. He says his association has full sympathy for the record industry's motives and does not want to defend people who are violating copyrights. But he can not accept a role for ISPs that requires them to monitor or block content that is not on their own servers, he says.
"This is another effort to force ISPs to carry a mantle of liability that they should not have," McClure said. "If you follow this logic to its extreme, we will have to go after Ford or Chrysler every time there is a bank robbery, just because one of their cars was used for the getaway."
The different interpretations of the law make it likely that the tension will rise as more people move from Napster and into file-swapping networks that are not linked to a single company. This model threatens the delicate balance struck between the two powerful camps during the DMCA negotiations - unless a court steps in to give clear guidance.
"ISPs have to be an integral part of the process," the RIAA's Creighton said.
