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?

Filed Under: business models, file sharing, isps, liability, uk

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  1. identicon
    Genny Pershing, 22 Feb 2008 @ 12:35pm

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    First, as a matter of legal theory, you seem to assume legal notions that are about 200 years out of date - about how responsibility is imposed.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

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