Many ISPs, especially smaller ones that don't have large legal departments, yank sites immediately after receiving threatening letters from content providers to avoid liability. But Verio, a unit of NTT Communications that hosts more than 400,000 Web sites, is raising the bar for site closures by refusing to buckle under MPAA pressure.
"That is a little unusual," said Ronald Coolley, an attorney with the Chicago office of Houston-based law firm Arnold White & Durkee.
The controversy stems from a letter the MPAA sent to Verio in November, which said John Young, the administrator of the free-speech advocacy site Cryptome, was illegally posting DeCSS, a program that can crack the code protecting copyrighted DVDs, letting people copy or use content for legal or illegal uses. Young denies the charges.
The MPAA already has sued several sites for posting the code. In August, a federal judge in New York deemed posting or linking to DeCSS illegal because it violates part of the Digital Millennium Copyright Act (DMCA), a corporate-backed measure designed to update copyright law in the digital age that some say goes too far by stepping on consumer rights. The case, a major test of the DMCA, is on appeal.
In its letter to Verio, the MPAA demanded that the ISP remove the code, citing DMCA violations. Instead of following the MPAA's wishes, Verio sent a letter to Young asking him to answer the charges.
On Tuesday, Verio told Young that as long as he complies with its demands "and unless or until we receive notification that the MPAA has filed suit against you, we will not require that you remove the materials, nor will we block access to your site."
Young followed Verio's instructions by sending the company a letter saying he did not break the law.
A question of liability
ISPs have been sparring with copyright holders for years over their roles in policing Internet content. In one of the earliest cases, Netcom bowed to pressure from the Church of Scientology, agreeing to block content posted by a church critic on the grounds that it contained copyrighted material.
The case sparked concerns that ISPs could be held liable for content posted on their sites by customers, thus creating an impossible standard by requiring them to review material for potential copyright violations before allowing it to be posted online.
In a compromise, lawmakers extended a "safe harbor" to ISPs under the DMCA, provided they respond quickly to so-called takedown notices. As a result, ISPs have come to play a significant role as Internet copyright police.
The arrangement means ISPs don't have to review all of the information posted on their sites in advance to avoid libel lawsuits and the like. But some critics of the law say it stacks the deck in favor of copyright holders, giving Web site operators little chance to challenge or appeal takedown orders without undertaking expensive legal action, which can be prohibitive for small publishers.
By contrast, Verio's position appears aimed at leveling the playing field.
Verio attorney Susan Gindin said the company likes to let the parties resolve the issues on their own rather than getting involved itself.
"We are trying to strike a balance, to allow subscribers to speak up before their sites are disabled and to give complainants the right to proceed," she said.
Gindin said the company receives about one complaint a day from a copyright holder asking that a site be removed. Many of those are legitimate requests, she said, adding, "We certainly want to assist copyright holders where there's a clear violation." However, she said her company has treated the handful of complaints that have specifically requested a DeCSS takedown in the same manner as the Young case.
Customer, activists cheer Verio
In an interview, Young said he didn't post DeCSS but did put up a now-sealed court document that contained the code for CSS, the entertainment industry's scrambling system that DeCSS is designed to crack.
Though he has had one run-in with the ISP, Young said that for the most part Verio has stood by him in the past, most recently refusing to remove government documents posted on the site even though a British intelligence authority demanded they be taken down.
"I think they are sensitive to this issue and don't like these high-handed yanking demands," he said.
Young thinks Verio's outlook will be good for business. "Customers are complaining loudly, so they're learning you've got an obligation to your customers," he said. "I think ISPs are going to compete over this."
MPAA Director of Legal Affairs Mark Litvack said the organization has not yet been notified of Verio's actions or of Young's response. He said the MPPA will examine the site and Verio's letter before deciding on any course of action.
Litvack said the New York judge's decision has given the MPAA extra weight in requesting that sites linking to or posting DeCSS be removed.
"We went to court and we had a trial, and the court said in a very convincing opinion that this is wrong and illegal," Litvack said. "Fortunately in this society, most people obey the law."
Meanwhile, Verio's refusal to take down the code has free-speech activists cheering. Robin Gross, an attorney for the Electronic Frontier Foundation, which is locked in the battle with MPAA over the legality of posting DeCSS, said she often recommends Verio as an ISP that stands up for customers.
"They're the only ISP that I know about that doesn't acquiesce," she said, adding that in this case, "the MPAA is just going to have to hold its breath and turn blue."
News.com's John Borland contributed to this report.