White Paper Creeps into Case Law

Internet service providers are being designated intellectual property cops for cyberspace

P> In a number of adjudicated and pending cases across the country, content providers and Internet service providers are clawing at each other over the important issue of who is liable for copyright infringement: the entity that illegally posts copyright material, or the service provider that provides the electronic posting? And by the way, what are Internet service providers -- hands-off phone companies or hands-on publishers? Enter the now-famous White Paper. Presented last September by Commerce Secretary Ron Brown and Assistant Secretary of Commerce and Commissioner of Patents and Trademarks Bruce A. Lehman, the 238-page report was developed by the Information Infrastructure Task Force's Intellectual Property Working Group. The document, which has no strict legal standing, attempts to fulfill the mission expressed by the Information Infrastructure Copyright Act, which was to provide "rules for our digital highway."

A talcum-dry tract, the White Paper is becoming a Class 4 hurricane in the Internet service provider legal circle, where cases often are argued by young, wired lawyers before white-haired judges who don't know 1200 baud from a hole in an anvil.

Because the document holds Internet service providers legally accountable for copyright and other infringements by their users, it may cause many to pay high insurance premiums for protection, or they might get out of the business altogether.

At the eye of the tempest is the fact that judges might start using the document to form case law. "Content providers like the white paper because it's slanted toward greater protection for content," said Bob Yoches, an intellectual property attorney based in Washington, D.C. "The [Internet service providers] are screaming bloody murder. They just want to be like the telephone company or any communications service."

But the parallel only goes so far. A direct comparison of PSINet to AT&T doesn't work because PSINet, which carries pictures, text, sound and more, is more than AT&T. More than AT&T, but not Simon & Schuster.

And between an unfettered, private telephone wire and an edited, publicly sold book lies the legal no man's land. To pack this void with some sort of intellectual fill, district judges and their clerks could find themselves delving into the white paper for tips on how to handle this prickly legal question.

"The reason that these [Internet service providers] are more than just a telephone company is because they have the power to intercept or edit content," said attorney Yoches. "My advice is, if [service providers] want to lower their risk, [they should] lower the amount of control. In other words, be like AT&T and just give somebody a wire."

The Digital Future Coalition, an interest group of 26 charter organizations such as the Computer and Communications Industry Association, opposes the white paper's use as a basis for case law.

Two months after the release of the document, the DFC sent an open letter to Congress voicing its concern.

"[T]he unbalanced analysis and incomplete technological understanding of the recent 'White Paper' report... are accepted and prematurely codified. While the authors of the White Paper claim that its recommendations... constitute only a 'minor clarification' of current copyright law, the real ramifications of those recommendations are sweeping," the coalition wrote.

The White Paper refers to Internet service providers because of their role in uploading material from their subscribers, as electronic publishers. "On-line service providers have a business relationship with their subscribers.

They -- and perhaps, only they -- are in the position to know the identity and activities of their subscribers and to stop unlawful activities.... Between these two relatively innocent parties, the best policy is to hold the service provider liable," the document states. Intellectual property attorney Yoches pointed out that the white paper's influence is not limited to copyright case law.

He cited Stratton v. Prodigy -- a defamation suit -- as an example. The suit illustrates the same point of service provider control over content pushing service providers farther from mega-telco AT&T and closer to mega-publisher Simon & Schuster. The suit was about alleged defamatory statements posted on a Prodigy bulletin board.

"Prodigy said 'Don't blame me, I'm a telephone company,'" said Yoches. "But it turns out that Prodigy advertised itself in the past as a 'family-oriented service provider.' They had apparently some sort of mechanism for searching for obscene words, and not allowing messages to proceed if they had those words. They were censoring. And the court said, 'When you start doing that, you're no longer a telephone company. You're now closer to being a newspaper because you are exercising editorial control.'"

The Digital Future Coalition contends that the white paper will:

- Delay or prevent the emergence of new commercial technologies, which increase copyright owners' effective control over data.

- Stifle innovation and job creation with overly broad prohibitions against the manufacture and sale of useful consumer electronic devices.

- Invade the privacy of digital information users (including students and library patrons).

- Expose on-line providers and Internet service providers to unspecific legal liability.

- Threaten the growth of new electronic educational techniques, such as "distance learning" programs important to rural communities.

- Reduce educators' and the public's access to digital information by creating a new "transmission right," which would make electronic communications "distributions" within the meaning of the copyright act, and by categorizing even "browsing" as a potentially infringing "reproduction."

- Increase the gap between information "haves" and "have-nots" by creating new protections for copyright holders without providing balancing safeguards for users.

- Erode the traditional concepts and practices of "fair use" by failing to reaffirm their importance in the digital environment.

Intellectual property attorney Gant Redmon contributed to the research of this report (gredmon@ids2.idsonline.com).

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