Julianna Yau’s blog

In the past two days, much discussion on the responsibilities of ISPs (Internet Service Providers, such as Rogers or Bell) has landed in my inbox or feed reader. This includes:

• The CCC’s platform on copyright
• A letter to the CCC from a member of ACTRA
• The Globe & Mail’s poll on whether ISPs should take a greater role in combating illegal file sharing
• Northworthy’s 2 cents

What really did get me was the poll on the G&M website. I have mostly been thinking about the ISP’s role in combating copyright infringement from the perspective that they are in the most advantageous position to do anything (and, of course, keeping in mind the problems of net neutrality, privacy and copyright holder abuse). But the question of whether it is in fact an ISP’s responsibility to do anything has, surprisingly, never crossed my mind. And if it isn’t their responsibility, where does the responsibility lie? To find out, let’s start by looking at who the players are:

• ISPs (Internet Service Providers; they provide end users with access to the internet; the internet is where the possibly infringing content is contained)
• website hosts (companies which allow persons to store content on servers; the servers may belong to the website host or to a third party; by being on those servers, the content is accessible on the internet)
• websites hosting user-generated content (sites such as YouTube, MySpace, Facebook, any discussion forums, etc, where the majority of the content is submitted by the users rather than the company running the website)
• users (the individual persons who access the internet and provide possibly infringing content; users can provide and access content either through a website or directly through their computer)
• software designers/companies (the entities which create the necessary software for computers to interact with each other and with servers; examples of relevant software are website browsers, software to facilitate peer-to-peer networking, and “webware“)
• hardware manufacturers (makes the computers used to go online and the servers where internet content is usually housed)
• copyright holder (the first copyright holders of content; often, but not always, this is the creator)

And how they play together:

Scenario 1 - User accesses content

1. User gets internet access through ISP
2. User gets software to put onto their hardware so that they can access the content on the internet
3. User accesses internet and obtains content, which could potentially have been provided to the user without permission of the copyright holder; or
   User deliberately seeks to obtain content without the permission of the copyright holder (usually, this happens by obtaining the content without payment; however, content is increasingly being provided without requirement of payment)

Scenario 2 - User only provides content

1. User gets internet access through ISP
2. User gets software to put onto their hardware so that they can provide content on the internet. This content may either be their own, or be provided without the permission of the copyright owner.
3. Content provided by the user is accessed by other users.

This is where we get into issues with the concept of “making available“. The argument is that the entity responsible for making something available is responsible for the copyright infringement; the counter-argument is that the content being made available could be used for legitimate purposes (primarily, anything falling under fair dealing). The problem with the counter-argument is that it is addressing an issue which is not related to the primary act of infringement in the act of making available.

A few weeks ago, I spoke with a colleague and friend about the concept of making available. After some discussion, we came to the very simple agreement that someone who makes a work available to the public without the permission of the copyright holder is infringing copyright…because they are publishing (making public; making available) something to which they do not have publishing rights. Someone who photocopies an entire book or reproduces artwork or duplicates software, without the copyright holder’s permission, and makes it publicly available is infringing copyright regardless of whether anyone takes the copied work or whether money is exchanged. Again, this is because that person did not have the right to copy the work. The problem of the accessibility of a work for fair dealing is an entirely valid one, but should not be solved by diluting the concept of the right to copy.

We also have to draw a distinction between the responsibility of infringement and the responsibility of policing. In most discussions where the ISPs, website hosts, software designers and/or websites hosting user-generate content have been nominated to police copyright infringement, the argument has mainly focused on the idea that they are an accessory to copyright infringement because they facilitate the transmission of content. I believe that this kind of thinking is one which is part of the administration/practice of law, and not unique to copyright law itself. The problem, in this case, is that this foursome is the easiest target for being asked to police copyright infringement on the internet because they are often seen as having mythical powers (and sometimes less mythical powers). While I think it is technically possible for that them to do the policing, I am now wondering whether that is the right decision, even without considering complications such as net neutrality, privacy issues and the mind-boggling question of how this can be implemented.

If we can agree that the goal is to prevent unauthorized distribution of works, and that the source of the unauthorized distribution is at the level of user, what needs to be done to stop that from happening, without resorting to technical protection measures? To answer that, I think we need to find out why people who do not have the right to distribute copies either are unaware that they don’t have that right or why they feel they do have that right.

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