Wednesday, October 17. 2007Lawyers And Technical ScenariosJohn Linton Exetel has, since early 2005, invested an increasing amount of time to get a better understanding of the future of P2P in terms of both the impact on bandwidth deployment and the various 'legal' and 'quasi-legal' implications involved in being a 'link in the chain' that delivers data to and from points outside Exetel's control. While we have gained, in my opinion, a considerable amount of knowledge over the past 18 months in how to both control and speed up the delivery of P2P 'packets' we haven't found any 'expert' source of legal advice on what the actuality of transmitting bits of data requires of us; or any other commercial entity that participates in providing some part of 'the internet'. What we have found is a huge amount of unhelpful and totally uninformed (not based on case or statute law or anything like it) speculation of what might be the case in different scenarios. I have just completed the latest in a series of totally unhelpful, and very frustrating, discussions with a highly recommended and very reputable "Australian expert in copyright law and technology". The net of that conversation is that neither he, nor anyone of his acquaintance either in Australia or in the UK or the USA has any advice to offer on what MIGHT be involved in facilitating/participating as part of a much wider network in the carriage of data bits which when assembled might be construed as infringing somone's copyright. We have only invested the time and money in investigating the legal aspects of switching data packets because we are innately cautious people and need to satisfy ourselves about this sort of issue. (There must be better ways of spending thousands of dollars). I have long term friends at both Sony and Warner Bros who are both implementing (in some cases have implemented) the distribution of video via P2P (BitTorrent). The article I referenced yesterday quoted the Canadian Broadcasting Corporation as planning to distribute their programs via P2P as well as the comments by a Microsoft spokesman saying that Microsoft was looking at also using P2P to distribute some of its 'titles'. There are already many hundreds of software companies using P2P to distribute their software and an increasing number of video titles are also being distributed by P2P. With the current estimates of P2P usage of worldwide internet bandwidth being 60% of peak time and 90% of off peak time (and growing year on year) the 'legalities' of any individual commercial entity in participating in providing the switching of data packets is already beyond any national legislation and there certainly is no international 'body' in existence recognised by any nation. According to the table on page 29 of the 13th October 2007 NewScientist article, over 75% of the bandwidth around the world is used to carry P2P data (no reference is given to the source of the research that generated that table). I think my current view of Exetel's responsibilities in switching data packets through the tiny/minute part of the world wide internet that we provide is that we have no responsibility to determine, packet by packet, whether they comprise 8 bits of a terrorist message to kill innocent people, snuff movies or other horrendous criminal activities or some entity's intellectual property. If anyone who may read this blog entry has a recommendation on a competent legal expert on this topic - I'd be grateful for their contact details. Trackbacks
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The potential legal problem is not so different to the usual raft of potential software development (or indeed ISP) problems when you do something new. No matter how well you might plan for the unknown, it nearly always bites you at the most inopportune time and in way you never even imagined
Back to the law. It's built on precedent. Until there's a real live legal precedent in the area, all anyone - including highly regarded blood-sucking lawyers like me - can do is speculate on what might happen. To expect more, or to be led to expect more, is to be somewhat disengeuous in the circumstances. Here's a brief summary of my view solely with reference to statute (there being little else): The Australian Free Trade Agreement (specifically art 17.4.1) required Australia to provide copyright protection for "all reproductions, in any manner or form, permanent or temporary (including temporary storage in material form)". Ouch! The US FTA Implementation Act 2004 therefore amended the definition of "material form" in the Copyright Act (sec 10) to provide that: "Material form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of a work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced)." Looks like those P2P bits fall within that definition. The Copyright Act was also amended to include a new exception which permits temporary copies made as an incidental part of the technical process of using a work, PROVIDED THAT the use would not otherwise infringe copyright (sec 43B). Oops. If the P2P bits are copyright infringing bits ... no exception for them. Nor does the exemption apply to any subsequent use of a temporary copy of a work other than as a part of the technical process in which the temporary copy was made (sec 43B(3). This suggests that once the reason for the temporary copy's existence is fulfilled, it cannot be "re-used" (or kept in the cache for subsequent re-use). However, carriage service providers are exempted from libaility for specified types of online activities (sec 116AC-116AF) provided they comply with specific conditions (sec 116AH). The online activities include "caching through an automatic process" (sec 1116AD) with caching defined to be: "the reproduction of copyright material on a system or network controlled or operated by or for a carriage service provider in response to an action by a user in order to facilitate efficient access to that material by that user or other users." (sec 116AB) Hmmm. Looks like it might cover P2P caching especially given the "or other users" qualification. So, what conditions does the service provider have to comply with for the exemption from liability? Sec 116AH - Item 1 1. The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers. Fair enough. 2. If there is a relevant industry code in force--the carriage service provider must comply with the relevant provisions of that code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material. Fair enough. Sec 116AH - Item 3 1. If the copyright material that is cached is subject to conditions on user access at the originating site, the carriage service provider must ensure that access to a significant part of the cached copyright material is permitted only to users who have met those conditions. Inapplicable to P2P one would think. 2. If there is a relevant industry code in force--the carriage service provider must comply with the relevant provisions of that code relating to: (a) updating the cached copyright material; and (b) not interfering with technology used at the originating site to obtain information about the use of the copyright material. Again, probably inapplicable. 3. The service provider must expeditiously remove or disable access to cached copyright material upon notification in the prescribed form that the material has been removed or access to it has been disabled at the originating site. Hmmm. Not sure how Exetel could comply with this requirement. Invalidate the entire cache? 4. The carriage service provider must not make substantive modifications to the cached copyright material as it is transmitted to subsequent users. This does not apply to modifications made as part of a technical process. Fair enough. Finally, sec 116AH(2) provides that nothing in the conditions is to be taken to require a carriage service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in item 1 above. The Sysadmins will be pleased If all of the above conditions are met, then the service provider pretty much escapes any significant monetary penalty by virtue of sec 116AG. But then I suspect you knew that or you wouldn't have invested $400,000 in the P2P hardware already! Comment (1)
Firstly, thank you very sincerely for that succinct and apposite summary - I'm only sorry that Exetel wasted so much money getting similar, but infinitely more verbose, advise.
Perhaps you would send me your/your firm's contact details (j.linton@exetel.com.au) so that we can seek professional advice in the future on this issue, and other technically related issues, should we need to do that. Comments (3)
I don't know what hardware you are installing but one setup I have seen in australia, had an interesting issue.
It sat between the router and the network in a transparent config and was designed to go into optical bypass if it failed for whatever reason. However that failure mode didn't work as designed initially. I believe the ISP in question was able to work with the vendor to fix it. But if your equipment does have that feature I would suggest testing it before it goes into production. -Annon. Comment (1)
John, what you're doing is very dangerous.
That "cautionary advice" has not taken into consideration the proper principles of legislative interpretation. Nor have they considered the ramifications of the common law. Nor have you considered, in thanking the poster, that interest groups could sway a minister of parliament to put forward a bill to change the legislation to stop the facilitation of copyright infringement - which essentially is what is happening with the caching system. You're speeding up P2P traffic, an undeniable majority of which infringes copyrights. Nor has the poster considered any industry code in practice, he just says it's unlikely... You seriously need to put all the cards on the table in front of a highly experience IP-law solicitor. I would recommend contacting Freehills, Slaters, etc. Unfortunately for you, you will be treading on thin ice in this endeavor. Its a field largely unexplored in Australia. You need to consider the implications of the free trade agreements, obligations for legislative change by our government and the wide interpretation of archaic copyright laws - which could very well be your downfall when legislative change comes along. Comment (1)
Exetel has spent, to date, almost $A10,000 on 'advice' on the subject of copyright atatute and case law.
Doubtless, in recommending Freehills and Slater Gordon you are familiar with the Digital Millennium Copyright Act which, according to the advice received by Exetel is the most applicable piece of legislation regarding this issue. In considering, over a period of 18 months, caching generally and caching IP specifically, we, pretty obviously, sought various commitments from possible providers of such services. Whether or not the two largest Sydney law firm's experts on this subject are less competent than Freehills and Slater Gordon's is not for me to say; I can say they, and the individuals within them appear to be highly regarded and impressively credentialled in this particular area of the law. The simple fact is this. No ISP is required by any statute, or even any remotely framed requirement, to inspect (and subsequently take some sort of action based on the result of that inspection assuming that such an inspection could in fact reveal anything about the data examined) each octet of data passing through the tiny part of the worldwide network of which it comprises. Caching data has been a part of computer networks since 1975 (at least) and there is not an organisationanywhere in the world that doesn't use caching of some type. ISP caching, as a method of reducing IP cost and speeding delivery of data, has been around, to my certain/personal knowledge, since 1995 in Australia and I would think that Exetel will be the last ISP, in Australia, of any size to implement some sort of caching within its network. If you have a specific recommendation of a true expert in this field then we would welcome your advice. Comments (3)
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