Protecting copyrighted and trademarked properties have always been a challenge for the rightful owners. In the days before the internet, however, infringement was often a costly proposition. For example, if someone wanted to steal a book published and copyrighted by another, the process involved securing a physical copy of the book and having it typeset for printing. Similarly, bootlegged cassettes and videotapes required investing a certain amount of cash to produce duplicates that would fool unsuspecting buyers. Therefore, most people tended to limit their piracy to the material for their own personal use or for a few friends or family members. They might record a cassette from a vinyl copy, for example, or tape a movie appearing on a cable channel. Although these actions deprived the rightful owners of royalties or sales, little was done about the practice.
The internet facilitated the theft of intellectual properties. Peer-to-peer sharing services were among the first sites that made it possible for users to inflict significant financial losses on the rightful owners, who launched vigorous responses and achieved some victories. However, as digital media became more popular, those seeking to earn a dishonest living found new ways to steal copyrighted material. A bad actor could obtain a copy of an e-book within seconds and begin selling it online within minutes. The same was true for movies, television shows, music and any other intellectual property that could be sold online in a digital format.
Unfortunately, the theft of copyrighted material is still rampant. One problem has always been that the move to globalization did not spark a unified front against copyright infringement. No “international copyright” exists to automatically protect against infringement on a global scale. Instead, the laws of each country prevail when it comes to protecting material against unauthorized use within that country. These laws vary widely, and there are even a few countries that do not have any copyright laws.
Furthermore, even countries that have laws to protect copyrighted and trademarked properties take different approaches. Most of them include some type of a safe harbor provision, but exactly what protections an ISP might have can vary greatly between countries. There can also be a wide variety of outcomes should a rightful owner name an ISP as a codefendant in a lawsuit. For example, BMG won a settlement of $25 million from Cox after Cox failed to forward infringement notices to their infringing customers, but WeChat recently prevailed in a lawsuit after the judge ruled that the company had no control over a user’s content and therefore no responsibility. In France, three instances of downloading copyrighted material illegally or failing to secure a system to prevent such downloads could result in blacklisting that prohibited ISPs from providing the subscriber with a connection to the internet. However, the law was modified in 2013. Although users can still be fined, they no longer risk being deprived of internet access. Instead, the government has shifted its focus to ISPs that allow the infringement to happen or continue. One hint of what that could mean for ISPs can be found in a 2010 case, Tiscali Media v Dargaud et al. The ISP claimed protection under the safe harbor provisions, but the French court denied immunity. The decision was based on the fact that the ISP displayed paid advertisements on customers’ infringing websites, making the ISP a publisher as well as a service provider.
One fact that has become increasingly obvious is that ISPs are being forced to navigate a complex system of laws to make sure that they do not lose their safe harbor. As of 2019, there are 195 sovereign states in the world, and each nation can potentially have copyright laws that differ from or conflict with the laws enacted by other nations. Furthermore, these laws are constantly being amended, repealed or clarified through the courts. Just keeping up with the changing laws can be a very costly endeavor for any ISP.
It is also important to remember that winning a lawsuit for copyright infringement can be a hollow victory. The legal costs alone could have a serious impact on the ISP’s profits, and this could lead to unhappy shareholders, delayed expansions, or a lack of available funds for innovative cybersecurity tools.
Fortunately, there is a better way to deal with the global issues of copyright infringement, including the safe harbor provisions. Abusix offers an extensive array of products for ISPs, telcos, hosting & cloud providers. Contact us today to learn how we can help you.