Software Publisher haben neue Regeln

[lutz@as-node.jena.thur.de (Lutz Donnerhacke)]

* Cyber Rights wrote:
Message-Id: <218812199493.LTK.025@cpsr.org>

(Introduction from moderator: The aggressive Software Publisher's
Association is trying to get ISPs to adopt rules restricting content
and even user activities on the Internet.  In addition to the problems
listed below, the proposed rules allow an ISP "the right to prohibit
and/or block access" to Usenet newsgroups and online chats "at any
time for any reason."  Besides the infringement of free speech, these
clauses reinforce the SPA's apparent view that the ISP is like a
publisher rather than a common carrier.  The poster below is a member
of both CPSR and Electronic Frontiers Georgia.  The following postings
have been reposted at his request from the action@eff.org list.--Andy)

Sender:  "Robert A. Costner" <pooh@efga.org>

The Software Publisher's Association (SPA) has the following language
available at http://www.spa.org/piracy/tos.htm

I have a few questions and comments about the suggested language.  I
hope many of you reading this will comment.  The paragraph numbering
has been included by me.

In (1) the agreement is stated to be valid whether or not agreed to by
the user.  Use of the system is consent.  (Like a shrinkwrap
agreement)

In (2) there is a agreement to obey all applicable laws.  I assume
this means the CDA and other similar laws?

In (5) There appears to be a statement that the owners of the ISP are
editors of the content of the site.  Would this not make the ISP
liable for all content on the site?

In (7) the SPA is suggesting that the ISP may remove or block
"material deemed inappropriate".  Does anyone think this is a good
idea?

Paragraph (9) seems to suggest that if your site is popular, then you
may be investigated for illegal activity.  As a way of comparison, the
300MB FTP limit is the same as downloading the new 16MB shareware game
"Blood" about 18 times.

Paragraph (10) talks about blocking access to IRC that has
conversations that are not deemed to be acceptable.  I forget how to
block IRC, but better yet, how do you determine which speech is
unacceptable?

In (12), it should be noted that within three days after your account
is terminated, an email notifying you will be sent.  I've repeatedly
said that the SPA does not understand how the internet works.  Maybe
it is just me.  How do they send you email after your account is gone?

In (13) the SPA suggests that after the ISP has released subscriber
info to help aid in an investigation (presumably the SPA's
investigation) the ISP may then further go on to tell the authorities.
Is not this a huge breach of privacy?

The overall tone seems to be one to make the ISP the judge of what is
and is not acceptable in the Intellectual Property arena.  As the ISP
carries this burden, this seems to now make the ISP legally and
financially responsible for the actions of users.

What does everyone think?


 ---- ---- Begin included text ------ ------

SPA suggests the following language may be added to Terms of Service
(TOS) agreements between server operators and their clients or
subscribers. At the request of members of the Internet Community, SPA
researched current TOS

 Please consider adding these excerpts where appropriate. Their
purpose is to strengthen current agreements and aid in preventing
misuse of the Internet.
 ---- ---- ------ ------
(1) This is a legal contract. Subscribers agree to be bound by these
terms whether signed or unsigned. Any subscriber who does not agree
with these terms should immediately stop using the account and contact
[Server Operator] to cancel.

(2) Subscribers agree to obey any applicable local, state, and/or
federal laws pertaining to their Internet access and use of these
services. The subscriber agrees not to use these services to conduct
any activity which may violate these laws. Use of these services
includes, but is not limited to: Web, FTP, Usenet, Internet Relay Chat
(IRC), Gopher, Email, Telnet, and any other medium through which
[Server Operator] server(s) are used for the storing, distribution,
and/or transmission of content or material.

(3) Subscribers may be held legally liable for content and material
located on their sites, including but not limited to: copyrighted,
trademarked, patented, or other material used without the permission
of the intellectual property rights holder; trade secret; pornography;
obscene and/or defamatory content.

(4) Subscriber agrees not to violate any intellectual property rights,
including uploading or downloading commercial software.

(5) [Server Operator] is a private company and reserves the right to
limit and/or prohibit any content or material it deems inappropriate
as part of this agreement.

(6) [Server Operator] reserves the right to monitor any and all
communication and activity which occurs through or on its servers to
ensure adherence to these terms.

(7) [Server Operator] reserves the right to prohibit, remove, and/or
block access to any pages which primarily contain hyperlinks to
content or material deemed inappropriate as defined herein.

(8) [Server Operator] reserves the right to prohibit, remove, and/or
block access to any pages which primarily contain content or material
which promotes or induces illegal activity.

(9) [Server Operator] reserves the right to limit FTP transfers to
300MB per day (this limitation may be varied as
appropriate). Subscribers who exceed this amount may be investigated
for illegal activity and subject to suspension and/or termination of
their account.

(10) [Server Operator] reserves the right to prohibit and/or block
access to any Usenet newsgroup, at any time for any reason, including
those which contain content or material in violation of the terms in
this agreement.

(11) [Server Operator] reserves the right to prohibit and/or block
access to any IRC channel, at any time for any reason, including those
which contain content or material in violation of the terms in this
agreement.

(12) Please report any violations of these terms to (SPA suggests a
dedicated email address, i.e. report@[Server Operator]). In the event
that [Server Operator] receives a complaint, [Server Operator] will
investigate the complaint and, in its sole discretion, may suspend or
terminate the account(s) involved and/or may remove the material from
its servers.  Subscribers will be notified, by email, within three (3)
days of this proceeding. Subscribers who believe their activities may
have been misclassified may petition [Server Operator] for renewal of
their account.

(13) [Server Operator] reserves the right to release subscriber
information to comply with an investigation into any activity which
violates these terms, and may report such activity to the appropriate
authorities.
 ---- ---- End included text ------ ------

  -- Robert Costner, (770) 512-8746
     Electronic Frontiers Georgia
     http://www.efga.org/
     mailto:pooh@efga.org

@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@

At http://www.spa.org/piracy/risk.htm the SPA lists "Theories of
Copyright Infringement" including an Indirect Infringement section,
where they state that ISPs, owners, and employees may have "Vicarious
Liability for Infringement by Another Person."  The stated "theory"
goes like this:

---- Begin quoted text -----
Anyone who has the authority and ability to control another person who
infringes any of the exclusive rights and who derives a financial
benefit therefrom, is vicariously liable for the infringement of
another person.

 o ISPs who have warez or pirate sites on their system
 o ISPs who have pirates for customers
 o sys admins for newsgroups or IRC where pirate activity takes place
---- End quoted text -----

This is current SPA policy that seems to state that any ISP, their
owners, or their employees may be sued for contributory copyright
infringement.  This in fact is expanded in the three October '96
lawsuits against ISPs.  The stated theory on this SPA web page seems
to be that an ISP is legally responsible for the actions of their
users.

I'm meeting with the SPA on April 24th concerning copyright
enforcement.  I was wondering if anyone had any useful comments on
this SPA web page?

  -- Robert Costner, (770) 512-8746
     Electronic Frontiers Georgia
     http://www.efga.org/
     mailto:pooh@efga.org

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  Posted by Andrew Oram  - cr-owner@cpsr.org - Moderator: CYBER-RIGHTS
   A CPSR Project -- http://www.cpsr.org -- cpsr@cpsr.org
          http://www.cpsr.org/cpsr/nii/cyber-rights/
          ftp://www.cpsr.org/cpsr/nii/cyber-rights/Library/
 Materials may be reposted in their _entirety_ for non-commercial use.
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