November 6, 1996 6:00 AM PST
Piracy campaign revamped
The SPA's Internet Antipiracy Campaign is aimed at Internet service providers whose users are either posting illegally copied software or building Web links that point to sites that offer such software. The SPA, with over 500 members including all the major software companies, is asking ISPs to sign a code of conduct that makes the ISP acknowledge responsibility for potential copyright violations in its domain.
Such a stipulation goes against a basic tenet of many providers, who will cooperate with the law once approached with evidence of subscriber foul play, but who consider themselves only the conduit and not the creator of digital information. In other words, they see themselves, much as telephone companies do, as "common carriers." Therefore, the ISPs say, they are not responsible for poring over the content that passes through their systems.
"I'd have to have a whole department doing that continually and set up extra servers," said David Williams, vice president of operations at Whole Earth Networks, a San Francisco-based ISP with 20,000 subscribers. "That's an unreasonable burden to put on me, to be a police officer."
SPA officials say that they didn't make themselves clear the first time around.
"We've not looking for them to appoint a full-time person to go through their Web site," said Peter Beruk, the association's director of domestic antipiracy. "We didn't mean it that way. We're revising that language and expect a revision of the code of conduct to go up as early as next week."
"Those are words that are generally indicative of unauthorized transfer of material," said Beruk.
Online rights organizations contend that the SPA has tried to coerce providers into signing the code by threatening civil litigation, when in fact no clear legal precedent for Internet copyright exists.
"The SPA is trying to be the judge, jury, and executioner of these people," said Robert Costner, director of Electronic Frontiers Georgia. "They're pushing the law. Determining the law should be left up to the legislature, not a trade organization."
In reaction to the SPA code of conduct, Costner has published his own seven-point policy that he says he has offered to the SPA as a working model. The association has not responded.
Current U.S. copyright law was last revised in 1976, and a court has yet to set firm precedent over the nature of copyrights in cyberspace. A copyright case in which the Church of Scientology sued Internet provider Netcom was settled out of court this summer.
Another bone of contention is that the SPA's campaign so far has focused not on actual pirated material but on hyperlinks to such material. The organization calls such references to unauthorized software "contributory infringement," and considers them indirect but nonetheless illegal validations of copyright violation, especially when the link is highlighted in a laudatory or encouraging way.
Where the law stands in regard to hyperlinks will probably have to be settled by another court case, although the SPA feels current copyright law is more than adequate ammunition.
But at least one provider isn't going to be swayed by the SPA's exhortations. "We're not going to have any reaction to their campaign," said Mike McQuary, president and COO of MindSpring Enterprises with 117,000 subscribers. "I understand their position as a trade association, but we're going to wait until we see good, clear direction from a judicial authority."
In other copyright news, the Columbus Alive's online news site has removed a photograph that was allegedly posted without the permission of the photographer, Ohio State University graduate student Taehyun Kim. Kim told CNET that Alive editor Sally McPhail notified him only after they ran the photo in the October 22 print edition and offered him payment. Kim refused permission but was told that it was too late to remove the photo from the paper. One week later, the AliveWired Web site ran a second photo of Kim's, also taken from his Web site without permission. McPhail was not in the office yesterday. An assistant confirmed that the photo had been removed but would not otherwise comment. Kim has asked the publication for monetary compensation and a public letter of apology.