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ISPs get a break on piracy

The Software Publishers Association backs down from its position that ISPs should take responsibility for illegal material posted on their services.

A prominent trade organization has claimed victory in settling suits against several Internet service providers that allegedly hosted pirated software, but it has quietly backed down from its position that ISPs should police themselves for illegal material.

The Software Publishers Association today settled the third of a series of copyright infringement lawsuits it filed earlier this year against regional ISPs. The suits held the ISPs responsible for subscribers who had allegedly posted pirated software or material that could be used to help people hack or illegally use commercial software.

Officially, the association said it agreed to drop the suits only because the offending material had been removed. At the same time, however, the group has softened its aggressive Internet Antipiracy Campaign launched in October by removing a key document from its Web site that had drawn serious objections of ISPs.

The suits against the ISPs--GeoCities, Tripod, and Community Connexion--kicked off the beginning of the campaign, which proposed to help reduce piracy by asking for the cooperation of intermediaries like service providers.

All three suits were filed on behalf of Adobe Systems, Apple Computer, and Traveling Software, which claimed their software was being distributed illegally from Web sites hosted by the ISPs.

Today's settlement with GeoCities concludes the legal chapter in the long-running story. But in its attempts to protect the intellectual property of its 1,200 members, the association has stepped on the toes of some ISPs, with which it would now like to make peace.

An integral part of the campaign was the ISP Code of Conduct, a document the SPA asked service providers to sign voluntarily to demonstrate that they would cooperate to fight pirated material. The SPA expected the service providers to force their customers to remove material allegedly related to hacking or piracy.

The problem was that ISPs consider themselves common carriers; like telephone companies, they believe they shouldn't be responsible for policing the content they transmit.

A reference to a "compliance officer" brought howls of protest from ISPs that maintained it was not their job to hunt through their subscribers' Web pages.

"We did not sign the code of conduct," said GeoCities CEO David Bohnett, whose company provides free email and hosts personal Web sites for 225,000 subscribers. "One part requested that we look at all material before it's posted on GeoCities. That's inconsistent with our content guidelines."

Only five ISPs had agreed to sign as of November 15. The association maintains that ISPs misunderstood its intent but has removed the Code of Conduct from its Web site anyway. The Association says it will eventually repost the Code, but hasn't set a timetable.

Although he agrees with the ultimate goal of fighting piracy, Bohnett said the SPA didn't give his company notice that illegal software was posted to Web sites on his service before filing suit.

Even Adobe officials, responding to questions about the SPA's campaign on their behalf, also questioned the organization's tactics. "There's some fair criticism about whether the SPA gave enough time for compliance," said Greg Wrenn, general counsel for Adobe. "The first emails were meant to start a dialogue, not to serve legal notice."

Wrenn still supports the SPA's goal of clamping down on piracy at the first warning signs, noting that a company like Adobe can lose a lot of money in a brief period of time if illegal copies of its software are let loose on the Internet. He doesn't think ISPs should have to act as Net police, but they also shouldn't ignore such obvious signs as multimegabyte file transfers from a subscriber's Web page.

With the same argument, the SPA's campaign director Peter Beruk said the association would refocus its efforts to help ISPs educate their end users about piracy.