Electronic Frontiers Georgia

Copyright Enforcement Requires Cooperation
A proposal for balancing the needs of Internet Service Providers, copyright holders, and Internet users
Electronic Frontiers Georgia
Electronic Frontiers Florida
Internet Service Providers' Consortium
Seattle Community Network
Texas Internet Service Provider Association
Voters Telecommunications Watch

February 18, 1997

Executive Summary
In late 1996, Actions initiated by the Software Publishers Association against several Internet Service Providers created a hostile relationship between the two. The SPA's legitimate interests in addressing alleged copyright violations was not well served. Their adversary actions were unnecessary and counterproductive, since ISPs generally oppose software piracy and are therefore natural allies of the software publishing community. We suggest improved communication, beginning with dialogue between software publishers and ISPs committed to building a working relationship.

The above public interest groups are committed to creating a dialogue between the ISP community and the software publishers at a "Copyright Enforcement Summit", which we will be scheduling immediately.

Key Findings

A coalition of grass-roots public interest groups has assembled the following findings which we believe are in the bests interests of all parties involved. We believe that the interests of all parties will be served by the mutual cooperation of ISPs and the software industry. The lawsuits have produced enough attention from representatives of each community that we believe constructive discussion may now finally occur.

In the following text, we have set out the issues we believe are critical to each stakeholder, and announce our intention to work on a more constructive solution.

Copyright Holders
Software publishers traffic in a medium that is intangible, easily duplicated, and easily transmitted over the Internet. This facilitates legitimate distribution, but it also makes illicit distribution through the same medium easy and attractive.

Software publishers have an investment in the Internet owing to its popularity as a medium for distribution and user feedback, which has contributed to their ongoing success. It is therefore important to show strong support for the continuity of a free and open Internet, ensuring that their products can be distributed inexpensively online.

However software publishers also oppose and attempt to stop illegal distribution of software over the Internet. For those in the retail software business, each download is thought to represent a potential loss for the publisher.

It is in the best interests of software publishers to create a cooperative, constructive working relationship with the ISP community. An ISP who feels animosity towards a software publisher or trade group is unlikely to work with them proactively.

Internet Service Providers (ISPs)
ISPs are simply pipelines for their users' content and primarily concerned with providing high quality service to their customers. They have no interest in the specific disputes of their users, nor do they have editorial control over user content. Because significant number of ISPs are small businesses operating on thin margins, they have an interest in avoiding litigation.

ISPs oppose illegal use of their systems by users. Because ISPs oppose illegal activities, and because they wish to avoid litigation, they have an interest in fostering a cooperative environment with the authorities and with publishers with provably valid claims of infringement.

Though ISPs must reject SPA demands they monitor and control their users' speech, they are willing to be partners in well-planned efforts to fight piracy. ISPs constantly oppose illegal activities on their systems and are ready to cooperate with software publishers to develop and implement cooperative copyright protection tactics that actually work.

Such a cooperative environment is diminished if not destroyed by threats of intimidation. Even if one buys into the fallacious assumption that an ISP is liable for user content, one must accept the fact that an ISP cannot logistically monitor the speech of their users with any effectiveness whatsoever, and we must turn to other solutions to seriously address this issue.

Internet Users
Internet users are in effect publishers, and they wish to ensure they can continue to publish their information. Users also want to avoid litigation, but where there is a dispute, they are better served by litigation in a court of law than by an ISP's mediation. In the end, an accusation of software piracy is exactly that, an accusation. Were an ISP to terminate the accused's service contract, the latter would simply obtain an account through any one of 4,000 other small ISPs in this industry. In addition, the ISP has every incentive to err against the user because the user is less likely to have the resources to pursue litigation if the accusation is in fact unfounded.

Although it is a more expensive process than the simple threat of litigation, the court system is the preferred channel for resolving these disputes because of the protections it offers Internet users, and the very real sanctions it offers software pirates.

We believe that resolution on this issue can come through an investment in forging relationships between software publishers, ISPs, and public interest advocates. To this end we are announcing our intent to form an ad-hoc working group to examine these issues.

By bringing together representatives of the ISP community, public interest groups, software publishers, and their trade associations, we believe that genuine mutual respect and constructive progress towards advancement in this issue can be achieved. Over the next few weeks, we will be issuing invitations to representatives of each of the stakeholders for our "Copyright Enforcement Summit", where all parties will meet, examine hypothetical enforcement scenarios, and hopefully foster a better working relationship for actual future incidents.

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