April 28, 1997

SOFTWARE PUBLISHERS ASSOCIATION CHALLENGES TRADITION

by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—The Internet is managing to survive—so far—as an open medium, turning back such challenges as the Communications Decency Act and related efforts in European nations. But there’s no dearth of forces seeking to impose content control. One is the Software Publishers Association, which wants to make Internet Service Providers police their users in order to cut down software piracy.

The SPA started with support from a wide range of software manufacturers and earned a fierce reputation for its raids on large businesses. At first it had plenty of work to do, because scads of companies were hopping from PC to PC installing a single copy of a spreadsheet or word processor in violation of their licenses. And one could well argue that companies should pay for each copy of the software they use, just as they pay for every desk and paper clip.

But the SPA is now at risk of putting itself out of business. Most companies have learned the fear of God and reformed their ways, so there are fewer and fewer sites to sue. The SPA faces a squeeze between the high salaries paid to its controlling offices and a sudden decline in membership and income. Now, though, like prospectors sailing to virgin shores, it has discovered a new field for operation: the Internet, a medium that provides an even more convenient channel for distributing software than the old-fashioned exchange of floppies from hand to hand, including software whose makers require a license.

Using lawsuits, the SPA wants to make ISPs adopt its Terms of Service, which—after a ritual appeal to respect for the law—radically redefine the relationship between the provider and its users. Under these terms, the provider “reserves the right to monitor any and all communication and activity,” and to remove or block access to user materials.

Not content with turning the ISPs into compulsive snoops, the terms also let them block Usenet newsgroups and Internet Relay Chats “at any time for any reason.” Hardly ever has a campaign tried so starkly to change a neutral service into a publisher with total control over content.

Philosophically, the SPA Terms of Service reflect the self-defeating hubris of publishers and software manufacturers, who depend for their sales on their customers’ love of knowledge and openness to ideas, but who act to stifle these very qualities for a dubious pursuit of marginally greater profits. Why does someone buy an educational computer game or a new tool for developing Web pages? They are seeking new horizons and a more effective way of reaching out to their peers.

In fact, the whole history of the Internet’s astonishingly fast spread tells us that people want to share their goods. Just as research has traditionally involved the clipping and exchange of newspaper articles, modern human discourse includes sending interesting tidbits over the wire. But like exploiters who thoughtlessly destroy a whole ecosystem to sell a few logs, publishers try to shut down access to information in order to protect the bit of information they have created.

To prove copyright infringement, traditionally, one has to show both that a defendant knew about the infringement, and that he or she did something to make it possible (participatory infringement). If you’re in a position to stop something, you may be liable for letting it happen. But ISPs, who make no efforts to control content, would probably be cleared of liability if a case ever came to court. Nor do they profit from infringement, another important criterion for establishing liability.

Three ISPs have been sued by the SPA so far. The notices sent were so poorly worded, from both a technical and a legal standpoint, that many observers think they were never meant to end up in court. For instance, the notices claimed that copyright infringement was occurring by the ISPs’ users, but offered no specific instances to support the claims. Some SPA critics think it is hoping merely to improve its cash flow by extorting payments from ISPs; this would give a whole new meaning to the buzz phrase “making money on the Internet.”

While the SPA’s supporters are distancing themselves from these embarrassing acts, and while they may well collapse upon themselves (as might the SPA as a whole) the affair shows that governments must take on the complicated task of defining the role and responsibilities of an ISP. Some Internet users would simply like to define them as “common carriers,” like railroads and telephone companies. This could lead to tricky side effects, such as the requirement to provide universal service or injunctions against screening material on special children’s sites.

But the tradition of openness and non-interference is well-established on the Internet, and it is time that public institutions recognize it in some fashion.


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