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ISPs stand firm after P2P ruling

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David Meyer ZDNet.co.uk

Published: 11 Jul 2007 12:13 BST

The Internet Service Providers' Association has repeated its assertion that ISPs should not be responsible for any illegal file sharing that takes place over their networks.

Speaking on Wednesday in the wake of a controversial ruling in a Belgian court and comments made by the Conservative leader David Cameron, a spokesperson for ISPA maintained that ISPs should not be "set up to play judge and jury" over alleged copyright infringement.

Last week a Belgian court ruled that the ISP Scarlet — formerly Tiscali — had the technology available to it to block or filter copyright-infringing material being sent over its network via peer-to-peer (P2P) traffic, and had six months to start doing so.

The judgement drew praise from John Kennedy, chief executive of the International Federation of the Phonographic Industry (IFPI), who claimed that it proved that "the internet's gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks".

The court's decision — which sets a precedent in European law but seems likely to be challenged — will not be repeated in the UK anytime soon, according to telecoms lawyer Danny Preiskel of Preiskel & Co. "I think we are a way away from reaching a similar decision in the UK in imposing such liability," he told ZDNet.co.uk, adding that such a case here would be "fiercely resisted" by ISPs.

But ISPs in the UK are opening themselves up to some degree of liability by moving away from being providers of "pure conduits", as they might be responsible for anything defamatory contained within the value-added content many ISPs are now trying to sell to their customers, added Preiskel. However, he confirmed that P2P steered clear of this pitfall by virtue of the fact that no content is hosted.

An ISPA spokesperson agreed, telling ZDNet.co.uk that "ISPs are recognised in the eCommerce Directive (2002) as mere conduits of information".

The spokesperson also responded to David Cameron's recent claims that, if ISPs could remove child pornography from their servers, they should also be willing to shut down the transmission of copyright-infringing material. "We are talking about different things here — child pornography is criminal and copyright infringement can be a civil case."

"ISPs shouldn't be set up to play judge and jury," the spokesperson continued. "What we wouldn't want is corporate censorship. Any kind of censorship of the internet has to be at the government level — ISPs are not law enforcement. We understand that ISPs play a part in combating instances of illegal activity on the internet, which is why we engage with rights holders and work with government authorities on that basis, but we wouldn't say we're the gatekeepers of the internet. The people responsible for unlawful content going up on the internet are the people who put it there."