ISP plays piracy cop
A Georgia ISP has reluctantly complied with a request from a trade organization to pull a customer's page that allegedly promotes software piracy.
Late last month, Intergate acceded to a request by the leading industry lobby for fighting software piracy, the Software Publishers Association (SPA), to pull a Web page from its network. The page allegedly listed hyperlinks to hacker Web sites that provided codes for breaking into copyrighted software.
But Intergate itself and an online civil rights group, Electronic Frontiers Georgia, believe that the SPA's efforts to combat software piracy may compromise the privacy and free speech rights of Netizens, especially if ISPs are roped in as enforcers of copyright infringement lawsuits.
In the Intergate case, for example, the ISP's servers did not actually host pirated software. The page that was removed was written by a user nicknamed "Tapu" and merely linked to other Web sites with so-called codes for cracking into programs.
"We had no pirated software on the system at all," said Jeff McGough, president of Intergate. "Information cannot be made illegal. It was a pointer. We should be able to put that page back up."
Intergate is one of at least 25 ISPs that have received a letter from the SPA entitled the "ISP Code of Conduct." The letter, which the SPA began distributing in late July, asks ISPs to agree to monitor their networks for pirated software.
ISPs were asked to sign and return the letter to the association to demonstrate their commitment to weeding out illegal software from their networks, although the agreement is not legally binding.
"The purpose of the program is to start a dialogue with ISPs," said Mark Traphagen, a Software Publishers Association vice president. "The bottom line is current copyright law makes intermediaries like booksellers liable under law. That limited liability serves a very important social purpose. That's what we've tried to do with the ISP policy."
Some legal experts are concerned that this policy, however, may be stretching the limits of existing copyright laws to try and account for alleged online violations.
"The SPA is trying to push the law well beyond where it has been in the past," said Scott McClain, a lawyer specializing in first amendment and copyright issues at Bondurant, Mixson, & Elmore in Atlanta. "Intergate was being accused of assisting someone who was assisting someone who was assisting someone in copyright infringement."
McClain said the SPA's efforts may make ISPs quicker to censor users out of fear of legal action.
"Focusing on the ISP runs the risk of squelching speech without letting the courts decide," he said. "The ISP has a lot of incentive not to get involved in litigation for someone else. You get a letter from the SPA lawyer, and it's a lot cheaper for the ISP to lose one customer than to fight it in court."
Association officials were unclear about whether providing hyperlinks to pirated software really constitutes an act of copyright infringement.
"We don't have all the answers now," Traphagen said. "It's going to be an evolving process."
Nor would he disclose how many ISPs have responded to the association's letter or have removed allegedly pirated software from their Web servers.
Electronic Frontiers Georgia has posted a Web page as part of an effort to monitor the controversy sparked by the Intergate incident.
The SPA has already demonstrated its seriousness in chasing pirates into court. In addition to multiple lawsuits filed against corporations and commercial pirates, the association filed a lawsuit in July against Max Butler in the U.S. District Court in Seattle, accusing him of illegally distributing software on the Internet.
The organization said it filed the suit after receiving a tip that Butler illegally distributed software to friends by uploading it to an FTP site operated by Abwam, a small Internet service provider.