Excelsior the book

ISPs buckle under copyright cases
Matt Loney
ZDNet UK
December 10, 2002, 11:37 BST

ISPs buckle under copyright cases

Internet service providers (ISPs) are reporting rapidly increasing incidences of take-down notices for copyright infringement material, in contrast to a diminishing number of requests to remove defamatory material from sites they host.

As the burden on ISPs increases, it is becoming increasingly difficult for them to fairly deal with cases where people or companies feel their copyright has been infringed, or where they feel they have been defamed. While ISPs have a duty to remove offending material, they say that because they also have a duty to their customers, the current situation in which they have to act as judge and jury is untenable.

Complaints related to copyright infringement now account for 54 percent of take-down notices issued to ISPs based in the UK, according to a preliminary survey by the UK's ISP Association (ISPA), which is being conducted as part of a bid to rationalise the process of removing possibly illegal material. Twenty-seven percent of take-down notices are related to defamation complaints.

ISPA is gathering the data to illustrate the growing problem with take-down notices in a bid to persuade the government to publish a code of practice that, it says, should effectively remove liability from ISPs. The work is being done by ISPA's sub-group on content liability. The sub-group spokesman Mark Gracey, who is also legal liaison manager at ISP Thus, said take-down notices are a huge burden, with each case costing between £50 and £1,000 to deal with.

"Anybody can put us on notice of take-down," said Gracey. "There is no standardisation of processes -- a ten-year-old child can do this by writing the notice on the back of a cigarette packet." At Thus, said Gracey, the number of take-down notices for alleged copyright infringement is "going through the roof."

But removing content -- whether because it is said to infringe copyright, defame somebody, be criminally racist or break laws such as the Obscene Publications Act, is not a simple process and can lay ISPs open to legal action.

"ISPs are rarely aware of the full facts of the case and could easily make a wrong decision," said Gracey. "ISPs are at risk of liability from the person giving notice and from their customers. Do we take down the content when asked by a complainant and if so, should we put it back when our customer who posted the content in the first place tells us to? We are the piggy in the middle. We are playing judge and jury."

ISPA is trying to encourage complainants to make contact with the person or organisation who posted the material in question, rather than the ISP. But there is an urgent need for a code of practice that would create a standard form for take-down notices and dictate who can issue them, sad Gracey. It should also address the issue of how and when content should be put back on the Internet if the ISP's customer is able to prove that it does not infringe any laws. "Rights holders do have rights, but we also have to consider the rights of our customers. Infringements are not always what they appear to be."

"There is also the notion of a safe harbour for ISPs, to provide freedom from liability," said Gracey. "That's what we need the government for." However, he said, any code of practice would take some drafting. "It has to be fair to ISPs, to their customers and to the complainants."

Gracey said the DTI does appear to be receptive to the idea, "but the government is still saying it is no convinced there is sufficient reason to go ahead." ISPA hopes to use the results of its survey to get across the fact that there is a big problem, and ISPs interested in filling out the survey or contributing their own horror stories should contact ISPA.

Gracey knows the problems as well as anybody. Thus owns ISP Demon, which in 1999 lost a defamation case brought by scientist Laurence Godfrey over comments posted on a Usenet conference hosted by Demon.

In that case the judge ruled that Demon's defence of innocent distribution was untenable because the ISP had been informed about defamatory messages.

(Stuff not really related to the thread matter:

God, if they can't print a book on demand for less than $18 raw cost, they're using the wrong machines.

But there's no minimum order; I haven't looked at the specifics of what Mark set up, but when I've used CafePress in the past (or have been involved with its use, etc), it's been comparable to or better than its competitors. Their binding is sturdier than most POD I've seen, especially in mass market or TPB-sized books under 400 pages. (Over that, and you get the spine going a little weird on some of them.)

It's not great, granted. And there's no option for color printing except on the outside covers. But when you don't have any startup capital, or need to spend it on other things ...

)

And Tep, I'm starting to wonder why you're even attached to this printing vs. publishing thing; what possible difference does it make, rights-wise? When the end result is a bound volume that costs $18 to buy, it makes very little difference whether it's got an ISBN on it; whether it's CafePress that does the inking or RR Donnelley, it's the same product.

Rights-wise, nothing particularly (except that making copies of something via Cafepress and distributing it without making money still lets you sell first rights to it -- that has nothing to do with this, though); and the ISBN number is just a concrete thing to point at to say "this is a book." Like I said -- I don't think the legality and rights are very important here. I'm pretty sure people wouldn't be okay with it if it were legal: so likewise, it isn't enough for me to say "it's wrong because it's illegal."

But I think glossing over the fact that Mark essentially arranged an agreement to make photocopies of threads -- with better and more efficient technology access than if he'd done it on a dot matrix printer 15 years ago -- rather than submit it to a publisher who would make it available to, and promote it towards, the general public ... leaps up the ladder of magnitude. I'm not saying it's okay he did it: only that it's not as bad, and Dan may find that a semantic argument, but so it goes. These threads always begin with agreement and descend into details. Towards the beginning of the thread, especially, it sounds a lot like people thought Mark was publishing this. I can't imagine getting livid over it otherwise, when it's so easily preventable, and he was asking for objections. Beth Orton fans notwithstanding, it's galactically unlikely anyone but an ILXor would even know to buy this, much less actually do so -- and I can't think of any objections made on more than principle that wouldn't be affected by the scale of what's under discussion. "Book" vs "chapbook" is an issue of scale, among other things.

I think I've covered all the ground I know how to cover on this topic; I think it's unwise to participate in public forums if you're bothered by the idea that what you type escapes your control when you stop typing it, because I know lots of it ends up elsewhere. Your Buffy post is probably in some sophomore's paper; I've seen less cogent stuff end up in students' papers before, with and without attribution, quoted or whole-cloth. I don't know if that bothers you more or less than the idea of someone you know collecting your post along with others in a printed volume. (xpost, as predicted; your response to Trayce pretty much answers that; I guess my approach to it is simply to not put anything in places like this if I care about its fate.)

In our opinion, the Congress did not intend to create such a situation when it enacted the 1976 changes to federal copyright law and abolished the traditional non-profit exemption from infringement liability afforded to public agencies. On the contrary, Section 110(4) was drawn to address the perceived abuses by public non-profit state universities in conducting large and perhaps very lucrative "rock concerts" featuring paid live performers which were then exempt from licensing fees under the non-profit exemption. In our view, the Congress did not intend the course now pursued by the major music licensing groups which seeks commercial rate fees for each and every public park and recreation facility using recorded background music in any manner and for any activity.

Specified exemptions are provided under Section 110 for annual agricultural or horticultural fairs. In 1982, fraternal organizations also received an exemption in so far as they also provide a community service. This community service rationale would arguably apply with even greater force to support a more specific exemption for public park and recreation programs under Section 110. Further, an argument could be made that the exemption extended to governmental entities for annual agricultural and horticultural fairs should be extended to similar community services programs, in particular public park and recreation programs. Otherwise, what is the legislative rationale for limiting non-educational governmental exemptions to fairs?

We believe the Congress must address the perceived ambiguity and abuses under existing federal copyright law, particularly the scope and applicability of Section 110(4). Thus, we call on your Subcommittee to conduct hearings to review this situation, and to determine whether remedial legislation is warranted to restore the public exemption contained in the earlier copyright law for programs like parks and recreation which clearly provide community services without private gain. As a minimum, Congress should clarify the scope of exemptions presently available to public park and recreation agencies under Section 110(4) by defining such unclear and ambiguous terms in the existing statute as applied to governmental entities, i.e., "commercial advantage", "not for private gain", "educational/charitable purposes."..

Once it gets outside of ILX - ie Cafe Press, Da Capo - ILX's wishes and precedents are worth nada.

There is no precedent set with this book. There is no effective defense that Da Capo and the "selected conversations" editor could make, based on the Excelsior book's publication. You don't lose your right to assert a copyright - say, for music criticism - because you didn't vigorously assert a separate copyright (say, for laughing at buttsex hijinks). And you certainly don't lose your copyright because another person posting at the same place didn't assert theirs.

(also, just to be clear, worrying about copyrights to something said on an Internet forum boggles my mind)

Also, hstencil, I suspect that cafepress has worked it out so that they fall under the duping guidelines referenced by New York up there, by having the shop owner submit an 'original' and then duplicating that exact original on different formats. They have to have some kind of protection, given their business.

Interesting FAQ, deals with libraries, but it contains these salient points:

Are there different types of infringers? It seems unfair to lump libraries with for-profit entities.
In addition to the garden variety infringement situation, there are two special categories of infringement. If the infringement was unintentional or the person infringing can show a good faith belief that he or she acted within the parameters of copyright law, he or she could be termed an "innocent infringer." On the other hand, if the infringement is done deliberately, and particularly if substantial profits were involved, the infringement could be termed "willful." It is important to know all three categories of infringement, since they have a significant impact on the damages available to the plaintiff in a case. More than likely, but certainly not always, a library would fall into the "innocent infringer" category.

Our library is part of a non-profit organization and our budget is small. Why should we be worried about liability for copyright infringement?
It is important to know that liability for copyright violation attaches whether or not the organization is for-profit or non-profit and in spite of the size of the operation or its budget. The ability to pay a judgment rarely factors into a decision on the merits in many civil cases. Although it may be the library which infringes, usually the parent institution will be held liable. And while many library budgets may be small, such as a hospital library, the hospital's overall assets may make the copyright action attractive enough to pursue. Bad publicity and a tarnished reputation may be just as costly for your institution as the money it would pay in damages.

You are right there of course. I dont mean to sound flippant or casual about this - IP is important to me also.

Tep so OTM it makes my eyes bleed.

And sure, Tep, if all you mean is that this particular thing isn't so bad at all, I'm completely 100% with you. I mean, I don't think I even posted to any of the threads in question, so clearly I'm here because of the bigger, principle-oriented picture.

The main reason I like having that copyright in place is because it makes it more likely that someone who actually does intend to profit off of the material -- and thus, more importantly, to put it someplace where anyone other than interweb mentalists are likely to see it -- will ask for permission first. I mean, at least DaCapo was nice enough to have us sign permissions for that Strokes thread before not-ever-paying us. Which may have something to do with my vehemence here: I've actually been making it an ongoing project to annoy them about my fifty bucks.

Anyway, here's my system: any person who'd bother looking over an ILX thread is a person I'm perfectly comfortable having read stuff I wrote here. If the material gets copied to other websites, well, in some cases I'm annoyed, but I expect it and don't care that much. But when material posted here moves in any direction toward appearing in an offline publication, especially one with a price tag on it, and of course at the extreme a widely-read one --- that's when I'd be likely to get uncomfortable. Because there's a significant change in context happening.

yeah, they probably wear trucker hats too.

Obvious answer: it ain't.

x-post, sue me.

Any precedent here means absolutely nothing. It's unenforceable, legally or socially. When it happens again, at best that you'll just be rehashing the same arguments. And if it happened in a commercial context as you've suggested, then whatever people say here would be even less relevant.

"Set a precedent" all you want, but you still haven't shown what difference it makes. I maintain that unless a precedent has some enforcement behind it - again, not just legally, but socially or otherwise - then you're just spinning your wheels to make yourself feel better. "Oh, we really took care of that. No ILX posters will be publishing compilations now!"

Precedent minus authority or force equals an example. So if this ever happens again, you'll have a really good example to show, but that's it.

Your dog-piss analogy is off. If rubbing my dog's face in urine wasn't going to stop him from peeing on the rug again, then what's the point? If the ILX precedent isn't going to stop someone from making a book again, then what's the point?

we have these people here at ILX called moderators. And we have this thing called an FAQ (soon to be revised). So I would argue that many aspects of ILX activity are enforced. Have you never seen any locked threads? General derision of trolls? Death threats towards established posters?

ps. I got my hysterical and imaginary lawyers workin' on the cease-and-desist post.

xpost yes most definitely, mr. mole. the cluster 14(c) ritual flogging stick is ready and waiting. of course, ILX would have to adequately compensate us, but you can't really put a price on the protection of your intellectual property.

Classic.

ILX didn't enforce ILX with cafepress, individuals who had their copyrights violated took up the issue. As a group entity, ILX has no standing, and even incorporated wouldn't have standing (as the FAQ explicity renders copyright back to individual posters).

Nabisco, that's fine and good, but it's got nothing to do with precedent. And that's what I was responding to.

I disagree, they can indirectly influence things as well.

ILX didn't enforce ILX with cafepress, individuals who had their copyrights violated took up the issue. As a group entity, ILX has no standing, and even incorporated wouldn't have standing (as the FAQ explicity renders copyright back to individual posters).

Technically as Andrew owns the servers, I would think he owns ILX. So I'd imagine that he could've referred to himself legally as ILX in his letter to cafepress.

I swear to God I'm letting this one go now, I'm turning into annoying 2002-nabisco.

And yes, Andrew could refer to himself as ILX - but ILX doesn't have standing to actually complain, because ILX didn't have its copyrights violated, individuals did.

And no, I'm not. But precedent has a fairly strict meaning to me, especially in a rhetorical context and referring to copyright issues.

ever hear of behavioral influence?

How do the mods stop someone from going to da Capo?

They don't. Da Capo's lawyers advise da Capo to get permission and promise payment. Then da Capo's accounts payable people screw ILXors from here to infinity.

And yes, Andrew could refer to himself as ILX - but ILX doesn't have standing to actually complain, because ILX didn't have its copyrights violated, individuals did.

Andrew had his copyright violated by both his posts being included and things being taken from his server without his permission (I don't believe the image linking thing would apply here as it's basically impossible - as far as I can tell - to prevent text theft in a technical webmaster-y way, obv. claiming copyright is non-technical).

Clearly milo's not a lawyer. I'm not one either, but just a cursory glance at current copyright laws (jumbled and misguided as they are) makes this stuff seem pretty obvious, at least to me.

Bottom line: I do believe the current ILX copyright notice needs to be expanded on.

maybe only if the site doesn't already have policies (or precedents, if you will) that copyrights belong to individual posters, as ILX does.

Anyone who posts a photo of themselves should be aware of the consequences, even moreso than their written posts. I know I thought about it before posting mine.