[iwar] Re: Notice (was IEEE says authors must certify papers to be DMCA-violation-free) (fwd)

From: Fred Cohen (fc@all.net)
Date: 2002-04-17 17:40:34
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From: Fred Cohen <fc@all.net>
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Date: Wed, 17 Apr 2002 17:40:34 -0700 (PDT)
Subject: [iwar] Re: Notice (was IEEE says authors must certify papers to be   DMCA-violation-free) (fwd)
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In article <200204171545550436.0FC1E049@godfreynet.net>,
laurence@godfreynet.co.uk writes

[I have snipped a fair bit, in the interests of conserving Yaman's
bandwidth. If anything I've left in too much - but those interested in
seeing exactly what I'm talking about and the details of what is being
argued about will need to refer to Dr Godfrey's original message, which
I am sure they will still have available.]

>For the past two years, various drafts of a document entitled "Judge and
>Jury?" have been widely circulated in Whitehall and in the Internet Service
>industry and on the internet itself. The document (referred to below as the
>"R4" paper), was sub-titled how "Notice and Take Down" gives ISPs an unwanted
>role in applying the Law to the Internet. It is written by an Internet Expert
>employee of Demon Internet. 

Strictly, it was written by me :) whilst I was still an employee of Thus
plc with the job title of "Internet Expert". I haven't been an employee
of Demon Internet for many years.

>It may be found at
>http://www.cl.cam.ac.uk/~rnc1/Judge_and_Jury.pdf.

or .html for the Adobe-challenged

>It argues that Notice and Take Down can lead to injustices because service
>providers will tend to play safe by taking down material complained of (for
>example, defamatory statements and alleged copyright infringements) that
>might turn out to be perfectly lawful. 

yes

>It is said that this would amount to
>"censorship". 

I don't think that's very accurate. The word "censor" occurs once, in
the summary - and as one of the many effects. The bulk of the document
avoids the word but instead describes the effects of various policies.

>This is an objection that is frequently raised by the ISP
>industry 

The "c" word may indeed be used by others. No argument there.

>and proponents of free speech (of which I am one), and one which has
>been dealt with above.

>It is instructive to deal with the other objections made to Notice and Take
>Down set out in the R4 paper, because they are frequently repeated by the ISP
>industry when lobbying in Whitehall. 

Good arguments are often recycled. This does give a sense of deja vu to
some discussions.

>These are:

>1 Costs incurred by service providers having to make a decision as to whether
>to act on a complaint

always remembering that the complaint can be for a wide range of issues,
of which defamation is only one

[snip defamation discussion]

>It is a matter for the ISP whether, and to what extent, it wishes to incur
>legal costs in relation to either of the two questions it has to answer.

indeed so ... and as we have recently seen with the allegations about
the behaviour of the Met towards various web hosting services - some
companies skimp on legal advice and thereby disadvantage the public

>2  Service providers cannot know if a particular defamatory statement is
>justified (true)

[snip]

>It is false to argue, as ISPs
>frequently do, that their inability to make a judgment as to the truth of
>defamatory material puts them in an impossible or at least untenable
>position. Once again, ISPs needs only to determine whether the material in
>question is defamatory and this is a much wider and more realistically
>answerable question than "is it libellous".

The problem here is again one of keeping customers

If I put on my website "Geoffrey Archer is an adulterer" then this is
clearly a defamatory statement (sorry Yaman, hope your mailing list
provider will cope!)

A few minutes with some back copies of a broadsheet newspaper will
indicate that it is very unlikely that Lord Archer would win a
defamation case on the topic. However an ISP that used your criterion
"is it defamatory" would certainly reduce the number of customers that
they might expect to keep.

Although you argue that a well-researched article discussing this defect
of Lord Archer's character would command space in the press; I somehow
feel that it would be unlikely to be newsworthy at present.
Nevertheless, I do think it remains very valuable to allow such
statements to appear on the web and to be repeated on Usenet.

Not all cases are anything like this clear cut. My paper gave a few
examples of the difficulties that can arise. They all reflect real
situations - and there were so many to choose from! Obviously some cases
are simple to decide - I'd say (from my own experience) that the
majority were not.

>3  Service providers cannot know if a complainant is serious if s/he
>threatens legal action

>This complaint of ISPs, echoed in the "R4" paper, gives some insight into
>their thinking. The implication is that ISPs have no interest in complying
>with, or deciding whether to comply with, a request to remove material unless
>the complainant is serious about issuing defamation proceedings against them
>if they fail to do so. It illustrates well the very reason why ISPs should
>not be given immunity from liability for defamatory material.

I would not ascribe this cynical attitude to ISPs and am disappointed
that you have read this into the paper :(

The reason for raising the matter was that, on Usenet in particular,
defamatory remarks are made on a very regular basis (I think Dr Godfrey
might find himself able to agree about this at least).

There seem to be quite a number of people who fire off emails in the
small hours when reflecting on the matter in the morning (and perhaps
sobering up) might mean that they realise the triviality of the matter
and so do not bother to take any action at all.

Of course, some of these reports are entirely serious and action will
need to be taken. However, many are simply the carrying on of a flame
war by other means... with the ISP in the middle.

The reason for needing to judge the seriousness of the matter is that it
may well be the case that acting upon the report is likely to reduce the
number of customers that the ISP has - and hence its profitability.
Clearly no ISP wishes to have customers whose actions will bring them
before the courts. Equally no ISP wishes to lose large numbers of
customers merely because a few flame wars get out of hand.

The vast upsurge of defamation complaints in April 2000 (after some
publicity given to the topic) has now died down. I don't think there was
more or less defamatory material on the net that month. This suggests to
me that some complaints, and particularly those made at that time, were
not entirely serious.

There was also the issue of what one should do about a third party
complaints. If Mr John Smith writes to say that Lord Archer has been
defamed, should one pay more or less attention if one learns that he is
Lord Archer's butler ? Purists would say that it makes no difference,
practical people would say yes it makes all the difference in the world.

>4  Indemnities given to service providers by their customers may turn out to
>be worthless

>Certain service providers have sought from their customers indemnities
>against legal costs and damages in respect of material about which they have
>received complaints or, having received complaints about material originating
>from a particular customer, have sought an indemnity in respect of that
>customer's future material. It is entirely a matter for the ISP whether it
>seeks such an indemnity and whether it relies on that indemnity to protect
>it. There is no reason why ISPs should be given special protection in the
>event that they are unable to enforce indemnify agreement.

so you agree ...  moving away from defamation (because remember that the
ECommerce Directive is all-embracing).

If a company is fighting a case on the copyright of the pictures on the
website, then the ISP is likely to remove the website without a
guarantee. Where it's an upstanding company then clearly profitability
is affected by losing the customer and the case might well fail.

So which companies should one trust for such a guarantee ? Andersons,
ITV Digital, Microsoft, McDonalds, Monsanto ??

>5  The service provider cannot know whether or not an act or failure to act
>would be regarded by a court as failure to take reasonable care 

[snip]

>ISPs, and Demon Internet in particular, have argued that more certainty is
>needed so as to avoid it being held that ISPs have failed to exercise
>reasonable care. I believe that the term itself is not ambiguous and the
>reasonableness or otherwise of particular steps can only be decided in the
>particular circumstances of each case. Any attempt to set out exactly what
>steps should be taken and what steps need not be taken by an ISP would
>inevitably fetter a Court when applying the law to the facts of a particular
>case.

I think you're saying (as indeed I currently believe) that some
generally sensible arrangements will need to put in place.

After that we're going to have to wait for some case law :( and then the
ISPs will need pay some expensive barristers for an opinion whether
particular procedures will need to be modified in the light of that case
law. A depressing (and expensive) prospect :(

>6 Claims against the service provider in contract and challenges under the
>ECHR

>as far as contract is concerned, it is a
>matter for the ISP whether it creates for itself an obligation to its
>customers not to remove customers' material from its servers in any
>particular circumstances and to what extent it leaves itself open to claims
>for breach in the event of such removal.

most ISPs now have such clauses

>7 Service providers' sales would be reduced because custom would be lost to
>foreign service providers.

the point made in the paper was that in an international context, one
may lose customers to overseas web hosting services that do not need to
have such draconian clauses in their contracts

>Notwithstanding that it is the intention of the Directive to unify service
>providers' liability throughout the EEA, 

I had the USA in mind

>this argument is flawed. It is
>conceded that potential libellers may take their custom away from UK ISPs
>because their defamatory messages are more likely not to be interfered with
>if published through an ISP in the USA. 

no - the argument was that perfectly respectable businesses might see
the clauses that are actually being used (to paraphrase: "the ISP can
remove any page at any time with no notice for any reason") as being
unacceptable. Being unable to negotiate an exemption (and see point #4
above about guarantees), they might well decide to take their business
elsewhere

- -- 
richard                                              Richard Clayton

They that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety.         Benjamin Franklin

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