Software Publishers Association (SPA) Oversteps Bounds

As reported in the Atlanta Journal Constitution and other media, the Software Publishers Association (SPA) is implementing a new litigation policy that could seriously hamper free speech on the net as well as expose ISPs to heavy liability which ISPs have not had to carry before. Apparently, this particular site, at Intergate, did not have any actual copyrighted materials, merely web links. Nor did these linked sites have actual copyrighted materials, but links to cryptography, security, and software and methods for licensed users to circumvent copy protection schemes on software they already own.
The SPA is sending letters to ISPs and demanding web pages be destroyed. So far 25 ISPs have chosen to "voluntarily" submit to SPA demands as "an alternative to litigation" from the SPA. This heavy handed form of policy making has been described by some as intimidation with a close resemblance to extortion.
The SPA includes an agreement to be signed http://www.spa.org/piracy/code.htm. According to SPA literature
ISPs should be aware... that they can also be liable if information made available on their system makes it possible for someone to use pirated software. ... Such acts ... constitute contributory infringement, and expose ISPs to the same liability for damages, penalties and injunctive relief as a direct infringer. However, the SPA fails to point out this is merely an idea they have come up with, and has never been tested in court.

Cary Howell of WEBPRO, The International Association of Professional Web Developers, says that it is not having the material that makes an ISP liable, but the removal of the material.

"This can be very dangerous, once an ISP begins censoring any content on its site, the ISP assumes responsibility for all content on the site.

The SPA claims web links are contributory infringement, but others would argue that a link is just a pointer to information. Sanford J. Asman, an Atlanta copyright attorney has stated:

Contributory infringement cannot exist where there is no infringement.

Robert Costner of Electronic Frontiers Georgia offers a view on why this can hurt free speech.

An attack on free speech claiming ISP contributory infringement is far worse than even a jail sentence. With a jail sentence the speaker merely gets punished for what he has said and continues to say. With an attack on the ISP, not the speaker, the decision to remove material is made not on the merits of the case, but on the threat of civil action against the ISP. The user is schelqued due to alledged copyright infringement, not actual infringement, and left with no means to communicate his message. This is the most chilling aspect of the SPA's actions.

The only case alledging ISP contributory infringement that has been brought to court, is the case of the Scientologists against Netcom. This issue was never decided in court. After months of litigation, Netcom's insurance company and the Scientologists settled out of court. One estimate of the resources required to fully litigate this type of action against the SPA sets a price tag at $500K, far more than most ISPs could produce.

Why do licensed software users turn to cracker utilities, including those that can be purchased openly off the shelf? The problem with copy protection in general is that all known methods end up producing trouble for legitimate users of the software (in many cases more than for the pirates, who have the time, skill, and inclination to think up clever ways of circumventing the copy protection). When your business depends on mission critical software components, you don't want to have to fool with hardware conflicts of dongles, or protection systems in software. Diskette copy protection was very popular in the 80's, but it did not work for users, and it did not work for publishers. Almost all products now have removed this feature due to market pressure.

Tapu tells her story Tapu says she is confused by all of this, and is frightened by the SPA's actions. See what is left of Tapu's web page now

What are people saying about the SPA? Click on these links to find out.

SPA information can be found at http://www.spa.org and http://www.spa.org/piracy/iapc.htm

Contact Info for SPA

Possession of information is not a crime, nor a cause for litigation. Take a lesson from the American Library Association.
Libraries do not advocate the ideas found in their collections. The presence of books and other resources in a library does not indicate endorsement of their contents by the library . . . The American Library Association opposes efforts which aim at closing any path to knowledge.

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