Court Cases Regarding ISP Liability

by Andy Oram
April 23, 1999

The growth of Internet access depends partly on protecting ISPs from undue responsibility for the acts of other Internet users. For people interested in the current status of liability for ISPs, I can sum it up in three words: an unholy mess.

Many cases (as well as recent laws in the U.S. and Germany) show a welcome trend toward exonerating ISPs from liability for users’ acts, while requiring them to rectify certain problems (such as removing illegal content from their servers). But court precedent is mixed, as I’ll show in the following summary of cases in various countries. For each case I’ll suggest what it means for service and content providers, although I do not by any stretch of the imagination claim the legal expertise to argue from these cases.

For readers willing to sally through an article from a law journal, I recommend Hijack on the road to Xanadu by Alex Morrison, published by the Journal of Information, Law & Technology, which was useful to me in researching this Web page and provides extensive background about non-Internet precedents.

Copyright Cases

Lycos (Norway and U.S.)

This well-known Web search engine was enhanced to do a specific kind of search for music recorded in the popular MP3 format. Large music publishers are trying to eliminate recordings in MP3 because it erects no technical barrier to making copies. The publishers claim enormous losses in profits from copying. On March 24, 1999, the Norwegian partner of Lycos was sued by an association of music publishers, the International Federation of the Phonographic Industry. An even more powerful group of publishers, the Recording Industry Association of America, has complained to Lycos and recently threatened to sue.

Potential impact on other providers: This case is a bit bizarre, to my mind, because it suggests that simply accommodating a new technology can be a form of copyright infringement. Somehow I doubt the case will go anywhere, but it represents a recurring leitmotiv for the RIAA, which unsuccessfully sued a firm last October for manufacturing and selling an MP3 player. The case is also reminiscent of very controversial sections of the 1998 copyright act that restrict not only the making of copies, but the creation of technology “primarily designed or produced” to make illegal copies.

Shetland Times Ltd. v. Wills (Britain)

The Shetland Times put advertisements on their home page and provided links to its own articles on other pages. Another site linked directly to the articles, thus letting users bypass the Shetland Times page with the advertisements. The Shetland Times claimed that both linking in itself and the use of Shetland Times headlines (six to eight words in length) constituted infringement. The court ruled in its favor.

Potential impact on other providers:\ It is hard to imagine any precedents being set when the law is so out of sync with technological change that the court could reach a decision only by calling a Web site a “cable program.” I consider this case entirely negative in its effects: it might weaken “fair use” provisions that allow selective quoting of other people’s material, and might encourage sites to place restrictions on the use of links, which undermines the whole basis of the World Wide Web.

Ticketmaster v. Microsoft (U.S.)

A case very similar to the Shetland Times case, and again one where the plaintiff (Ticketmaster) won.

Potential impact on other providers: Again, this may set a destructive precedent. It illustrates what can happen when people seek financial benefits from a new trend (the Web) without understanding the philosophical and technical underpinnings of the trend.

Total News (U.S.)

Total News made links to news articles on other sites, as in the Shetland Times case, but went further by putting the articles in frames surrounded by ads chosen by Total News. Several news publishers sued, claiming that the frames gave the impression that the articles were actually created and owned by Total News. Even though the source of each article was clearly indicated on the Total News page, it made significant concessions when settling out of court. The most important concession is probably a new right to control linking, in which the news organizations grant “link licenses” to Total News.

Potential impact on other providers: This case outraged many observers because Total News was being quite above-board in its use of other sites’ material. If somebody tries to charge you a fee for the privilege of linking to his site, you have this court to blame—although luckily I haven’t heard of anybody following up on such an absurd settlement.

Church of Scientology case against Dennis Erlich (U.S.)

Dennis Erlich is a former member and current critic of the Church of Scientology, who publicly posted parts of Church documents on its doctrines to a BBS called Clearwood Data Services. The Church reserves these documents for members, charges high fees for access to them, and considers them under copyright. In 1995, representatives of the Church (formally known as Religions Technology Center and Bridge Publications, Inc.) sued Erlich, the BBS, and the provider used by the BBS, Netcom. After several rulings in favor of the BBS and Netcom, the Church dropped its suit against them. Erlich, who claims that he has the right to publish the portions he posted as “fair use,” tells me that the suit against him goes to court May 4, but that its goals are greatly scaled down to seeking an injunction against using the material.

Potential impact on other providers: Leaving aside the question of whether the Church’s critics were engaging in “fair use,” and the ethics of charging for access to supposedly religious documents, this case shows the danger lurking for service providers. For that reason, I highlighted it in the accompanying article.

Church of Scientology case against Karin Spaink (Netherlands)

As with Dennis Erlich, Spaink posted internal materials and was sued for copyright infringement, along with the ISP whose server hosts the material, XS4ALL, and a number of other access providers. In February 1996 the Dutch court rejected the Scientologists’ claims against the providers and ordered it to pay their court costs (which it has not done). Spaink’s decision will be handed down soon.

Potential impact on other providers: Here, the ISP was quickly exonerated, but the potential for harrassment remains in the absence of clear laws such as the 1998 U.S. copyright act.

Playboy v. Frena

George Frena operated a BBS where photos from Playboy Magazine appeared in 1993. Playboy sued him successfully for copyright infringement. It’s not clear whether the reason is that, as attorney Jonathan Band put it, “one of the rules of copyright is that Playboy and Disney always win,” or that the evidence proved Frena was aware of the existence of the material on his site.

Potential impact on other providers: Since the court ruled (correctly or incorrectly) that Frena was directly responsible for the presence of the infringing material, this case does not seem to have an impact on innocent service providers.

Sega

This maker of video games sued a BBS under circumstances similar to those in Playboy v. Frena, and won.

Other Cases Involving ISP Liability