Can Someone Explain Why It Should Be An ISP's Responsibility To Deal With File Sharing?

from the it's-a-simple-question dept

Last week, we noted that there was some draft legislation in the UK making the rounds that would have ISPs ban people found to have participated in unauthorized file sharing. Some people responded by saying that this was just a draft and there was no chance it was going to go anywhere. However, the UK’s Culture Secretary Andy Burnham is now saying that the government is quite serious about pushing this legislation through, and that ISPs would be wise to implement such a system voluntarily before the government acts: “Let me make it absolutely clear: this is a change of tone from the Government. It’s definitely serious legislative intent.” What he doesn’t make clear, however, is why it should be the ISPs’ responsibility to prop up someone else’s business model. What’s next? Will they push automakers to fight back against bankrobbers who use getaway cars?

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Comments on “Can Someone Explain Why It Should Be An ISP's Responsibility To Deal With File Sharing?”

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claire rand says:


in exactly the same way the telephone company is liable if you say something horrid, or if you use dial up for your data stream. oh and your car maker if you park illegally, the library if you get a dangerous idea, the maker of your stereo if someone other than yourself hears a song.

except of course gun makers, who are not liable for the twits who can’t use a gun

i realise the last point could be a tad contentious, it does i feel make the point. a provider of a service should not be liable for what people do with that service.

people *are* liable for their own actions, or should be

Scorpiaux says:

Re: liability

“a provider of a service should not be liable for what people do with that service.” – claire rand

The generalities on this site are breathtaking.

I suppose a drug distributor isn’t liable either for what people do with the drug which he or she purchased from a drug manufacturer and sold to those people.

DanC says:

Re: Re: liability

“I suppose a drug distributor isn’t liable either for what people do with the drug which he or she purchased from a drug manufacturer and sold to those people.”

‘Drug’ is a very vague. Are you suggesting that a company like Walmart that purchases Tylenol is liable for actions of consumers that purchase the Tylenol from them? It fits your statement.

Or are we only talking about illegal drugs? In that case, your example doesn’t really apply. The distributor is breaking the law, the drugs are illegal, and the people buying the drugs are breaking the law. Also, there isn’t any real question of the drug’s legality. In most cases they’re either legal or illegal. That doesn’t hold true for copyright.

ISPs are already immune from prosecution under the safe harbor provisions of the DMCA, and there’s no good reason to force or persuade them to filter content.

Chronno S. Trigger says:

random question

would this law allow me to download anything I want until I get banned and switch to another ISP and repeat? or would this law force the ISP to police their networks needlessly since the government is still going to punish the user anyway?

And no one has ever explained how the ISP will know the difference between a legally shared file and an illegal one.

Anonymous Coward says:

Re: random question

My understanding is that the UK version of the RIAA will hop around on filesharing networks collecting IP addresses and sending complaints to the ISPs, who then send warnings and eventually drop you. What hasn’t been noted was (1) how you validate a claim to make sure an IP address doesn’t make it in erroneously, and (2) as noted below if the ISPs are kicking off customers, what’s the financial incentive to keep them in the game? They get no reward for enforcing the Recrding Industry’s policies.

Anonymous Coward says:

Trying to make the ISPs control illegal file sharing is like trying to make the state highway departments try to track down people transporting stolen goods on their roads. They simply provide the means of transportation, and dictate what kinds of vehicles can travel on those roads. There is no way they can control what kinds of goods are transported as long as the vehicles used are legal. It should be perfectly clear by now that some form of online policing agency is needed, but trying to turn the ISPs into such agencies is completely the wrong way to go about it.

Petréa Mitchell says:

Differing metaphors

The metaphor behind this bill: “ISPs carry and deliver data, just as trucks (or lorries, since it’s the UK) carry and deliver cargo. We regulate how they treat cargo, especially if it’s hazardous. Obviously, prudence calls for us regulate how ISPs treat data.”

The metaphor used by technology professionals: “ISPs provide you with a communication channel, just as the phone company provides a phone line. We don’t make the phone company step in if you say something naughty. Obviously, ISPs should not police what you say electronically.”

Yes, we’re back to “The Internet isn’t a dump truck, it’s a series of tubes.” But all the mockery surrounding statements like that is obscuring the fact that the competing metaphor does exist, it is going to produce legislation like this, and arguing that one metaphor is “right” and another is “wrong” isn’t going to do a thing about it. All you can do is start by understanding the mental model behind the legislation, and work from there.

Anonymous Coward says:

Bars can get in trouble for having drugs sold in their establishment by drug dealers not connected to the bar. Hotels get in trouble for allowing prostitutes use their facilities for prostitution. Airlines were supposed to provide security for its customers before 9/11. Printers can and do enforce copyright issues when it comes to printing books or photographs.

LJSeinfeld (profile) says:

Re: Re:

O’Rllly? That’s the best argument you can come up with.. I hope your next RIAA paycheck bounces… IF they spent less money on this (and other) kind of foolishness and more money working on a business model that would be acceptable to modern society at large, maybe they wouldn’t be “hurting” for money.

Illicit drugs, prostitution, and 9/11 have NOTHING in common with filesharing.

But nice strawman anyhow…

TriZz says:

It's really not that hard to understand...

…or maybe I’m over simplifying it, to which point, this is the Internet and my fault will inevitably be pointed out.

I would like to think that IF I used your website as a means to post cryptic comments that would eventually lead the reader or decrypter to a drug deal, that would invoke a permanent ban from posting on your site.

It’s a service that you’re providing (free or not) and I’m sure there is a TOS in place somewhere (I don’t feel like searching).

Wouldn’t that be similar? Even though TechDirt would NOT be liable for the drug deal that happened as a result of my messages, you certainly would not want me back to your site.

Perhaps that’s why the ISPs should deny illegal file sharers access to their networks. Or maybe I’m misunderstanding? I only read the summaries…I mean, isn’t the government only implementing something that should be in place already?

I ask because a friend of mine got busted for ‘seeding out’ a movie that was still in the theaters (I am Legend) and his ISP sent him an email saying that they know what he’s doing and if the activity doesn’t stop by X date/time that they would cancel his service and no longer provide access for him (which I don’t think is all that harsh, I mean…It’s better than a gynormous fine).

So, if the ISPs in the UK are being lax about filesharing (unlike my friend’s ISP) … is it really THAT big of a deal that the government steps up. Illegal filesharing is still illegal (not stealing) … and it is the Government’s place to uphold the law of the land, or have I missed something?

Chronno S. Trigger says:

Re: It's really not that hard to understand...

That’s like the US government forcing WalMart to stop selling M rated games to minors. It’s a policy that should already be in place but is not presently government regulated. As long as it’s an internal policy it’s ok, but once it becomes a law it goes against the first amendment.

Now I don’t know if the UK has the same kind of protection for their citizens, but I can imagine, since this guy is basically threatening the ISPs, they do and this law probably won’t pass.

Genny Pershing (user link) says:

Carriers as Man in the Middle

You ask the question “why should it be the ISPs responsibility…”

First, as a matter of legal theory, you seem to assume legal notions that are about 200 years out of date – about how responsibility is imposed.

A modern legal theory is known as law and economics. The assumption of law and economics is to maximize economic production and public welfare. The question of responsibility becomes – not one of fault – but who can most efficiently and economically solve the problem.

This theory came to favor during the industrial revolution. A train goes through farmland, throwing sparks which result in fires. Whose “responsibility” is it to stop the sparks? Is it the trains which could basically not run without throwing sparks, or is it the farms which could build fences or move the crops back. Whichever could mitigate the harm most economically efficiently had the “responsibility” (duty). A failure of that duty resulted in liability.

If it is assumed that copyright theft through P2P is a problem (you seem to question this too – but one question at a time), then the question of responsibility is answered by what party can most efficiently address the problem while maximizing public welfare – not whose fault it is.

This is not to say (or not say) ISPs should be put in this role. This is to respond to your question “when did it become their responsibility.”

Finally, I would note historically carriers have played this role. Telegraphs. Telephone. Postal. These are all carriers that sit in a unique position in the economy where they are able to engage in activity for the public good. This includes wiretap and refusals to carry goods declared contraband by the government. ISPs role in this is no different than any carrier before them.

Now I can make dozens of compelling arguments as to why putting this responsibility on ISPs would be ineffective and contrary to public welfare – We will end up losing the open nature of the Internet with a sledge hammer solution that will miss its target. But I do not question the premise that putting ISPs in these roles is within the realm of the conceivable.

Anonymous Coward says:

Why does everyone make such a big deal about file sharing? It has been around way before the internet remember the mailed tapes of new songs ect? Yes its illegal but the more you talk about something the more people do it. If the government would give some the public may give more money back! I download things if i like it i will pay for it or tell others to get it to purchase it.. I never liked norton antivirus tried it in 2002 and been buying it ever sense this year it cost me 300$ i didnt steal it i paid per machine.. If i wasnt able to try it in 2002 i would of never became a customer

Steve R. (profile) says:

Who has the right to demand filtering?

For the sake of argument, lets assume that filtering is a legal mandate.

If John Doe (a member of the general public) finds some content he does not like or content he believes he owns is being illegally shared on the internet, will he be able to demand that the ISP filter this data?

Furthermore how would the ISP even know if the entity demanding the use of a filter has a “legitimate” right to have that data filtered?

Obviously this will also raise the issue of “equality” since the ISP can not possibly satiate everyone’s desire for protective filtering. To paraphrase Orwell some content owners will be more equal than others. The small artist probably won’t get filtering protection and will starve but the RIAA will get it and the RIAA managers will enjoy their Hawaiian vacation homes.

Xan says:

Seems kind of odd

As was alluded too earlier, what incentive do the ISP’s have in enforcing this? It just seems odd that laws would be passed that would force ISP’s to lose money by banning customers so that the RIAA won’t lose money. What makes them so special that their business model would be protected by law, but not the ISP’s business model?

Poomer says:

quick reply...

sorry for bad english and broken sentences…in a hurry

you cant compare service with commodities. isp vs gun manufacturers.apples and highway.

the question is why did they come to this decision?

internet service disrupts other laws such as copyright. the solution, try suing the websites which enable filesharing. this becomes long and tedious legal battle. wrong outcome can have disastrous consequences.

so taking the easy route go to the source. make isp find and ban users (personally, its not a good idea) – conflict of interest. unless the incentives from the government/other sources (such as RIAA etc) are higher than the loss in customers
have government provide the internet -? worse.

u want to sell something – make it the right value and i will buy it.

darrylxxx says:

UK creative industries strategy

This nonsense seems to come from this newly published strategy for the UK’s creative industries

Much of the rest of the document is actually quite encouraging for creative industries, but this sticks out like a sore thumb.

“Fostering and protecting intellectual property
We will consult on legislation that would require internet service providers and rights holders to co-operate in taking action on illegal file sharing – with a view to implementing legislation by April 2009. Finding voluntary, preferably commercial solutions, remains the ideal, but the Government will equip itself to introduce legislation swiftly if suitable arrangements between ISPs and relevant sectors are not forthcoming or prove insufficient.We will also explore tougher penalties for copyright infringement. These actions signal the Government’s strong support for the creative industries as we move towards a fully digital world.”

Iron Chef says:

Re: UK creative industries strategy

This nonsense seems to come from this newly published strategy for the UK’s creative industries

Much of the rest of the document is actually quite encouraging for creative industries, but this sticks out like a sore thumb.

Wow Darylxxx, that has to be the best, most straightforward lifecycle-driven piece of research I’ve seen an industry take to their product! If it goes forward, it could be a model for other industries. Kudos on finding that!

I remain certain that if the processes were intentionally created with the overall intent of “Make it easier to legitimately license content”, they may find that the legislation piece just adds a large amount of unneeded overhead costs to the entire programme.

Great Find.

me (user link) says:

Gee, I hope they don’t ban the guy in the building across the street whose open wireless connection I use. If bthey do that I’ll have to switch to the open wireless connection of the apartment on the next floor and that building only has a dozen open connections available.

That first guy had better get himself a new connection in the next year or so because that’s about when I’d run out of ISP to use.

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