ISP liability, round two

Last month we talked about the much reported plan to force ISPs into enforcing file-sharing by imposing a “three strikes and you’re out” policy by which users who download infringing material online will be issued with two warnings and then their system will be disconnected from the network. I commented that this is part of a wide-ranging offensive by content owners in their battle against illegal downloading.

There is a complex negotiation taking place at the moment between the copyright industries and ISPs, where the details of the enforcement are being discussed. On the sidelines, you have the government threatening to unleash legislation if the parties do not come to an agreement. The next stage in the negotiating process seems to be taking place in Ireland, where Irish ISP Eircom has been taken to court over copyright infringement by its users. Daithí at Lex Ferenda has a comprehensive analysis of the case, which I will not repeat here. What seems to me, is that this lawsuit is just part of the ongoing enforcement shift by the music industry. As the direct attack on users failed, the industry is going after ISPs in a U-turn from previous policy of ISP indemnity.

In the early days of the Internet as we know it, ISPs were subject to liability suits for hosting illegal, defamatory and/or infringing content. This practice shifted as it became clear that it was not feasible for ISPs to control vast amounts of information they hosted, and therefore notice-and-take-down approach prevailed. What we are seeing now is a large shift from that practice, as music owners have realised that their best chance of curbing infringement is to go after the ISPs. In my opinion, the Eircom suit serves two purposes: it tests the existing ISP limitation of liability; and it also sends a clear message to ISPs. Comply, or else.

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