Communications Today

September 17, 1997

U.S. Telephone Association (USTA) President and CEO Roy Neel suggested to the House Courts and Intellectual Property Subcommittee yesterday (9/16) that legislation dealing with the implementation of the World Intellectual Property Organization Copyright Treaties be joined with legislation concerning Internet service provider (ISPs) copyright liability.

Under current U.S. law, Neel said several copyright lawsuits already have been brought against ISPs by a variety of trade associations. This litigation, he said, could "create a chilling effect on the provision of Internet service, especially in rural areas, unless promptly addressed by Congress."

Specifically, Neel addressed the copyright liability bill(H.R. 2180) sponsored by subcommittee Chairman Howard Coble (R-N.C.), saying that the legislation was "on the right track," but "contains flaws that must be correct before it can finally be enacted." The USTA president applauded Coble's bill for "asserting up front that service providers are not to be deemed liable."

However, Neel said he felt the bill would "provide a disincentive" to ISPs to offer "user-friendly" services such as directories or hyperlinks because it suggests that these activities would open an ISP to potential lawsuits by content owners. Neel further explained that Coble's bill would necessitate a "costly, inefficient and ineffective monitoring system" on the ISP side.

"Although the bill specifically says that there is no legislative mandate to monitor the Internet, it includes a laundry list of 'prohibited acts'...Engaging in any one of these 12 activities results in a loss of the Act's initial protection," Neel said, explaining that this essentially would require monitoring by an ISP 24 hours a day.

Neel suggested that copyright owners and ISPs "share responsibility" for protecting copyrights. Explaining further, Neel said copyright owners should have the task of discovering when an infringement has occurred and the obligation of informing the ISPs of the violation. Then the ISP would become liable for correcting the situation.

"If, however, an ISP has neither received notice of infringement nor otherwise has actual knowledge that it is occurring, then it should not be held liable for the acts of third parties," Neel said.

On the other side of the coin, Jack Valenti, president and CEO of the Motion Picture Association of America, told the subcommittee that copyright law should "continue to provide the right incentives" to ensure that ISPs will cooperate in fighting piracy on the Internet.

"Accountability, under appropriate circumstances, for copyright violations committed by network users is one of the legal incentives provided under current law," Valenti said.

Valenti added that a "remarkable" few lawsuits have been brought thus far dealing with ISP liability. And in the cases that have been brought, he noted, "the results, by and large, have been fair and reasonable." He urged Congress not to use legislative "fixes" for the liability situation before identifying if anything is "broken in the current law."

"In other words, [Congress] should approach this issue withcare, caution and a respect for continuity in our copyright law," Valenti said.

Valenti also made the point that the implementation legislation on its own already is "controversial" and adding the liability question at this point would only cause the complexity of the issues to "take a quantum leap." This would end any hope of meeting President Bill Clinton's proposed one-year time frame for implementation, he added.

In addition, Valenti said other signatories to the treaty are watching the United States closely and will interpret the linking of liability issues to the implementation legislation as a "relaxing" of standards.

"If we were to change our law to further limit the liability of [ISPs], the weakening of that worldwide chain of copyright protection would be a clear and present danger," Valenti said.

Bruce Lehman, commissioner of patents and trademarks, told the subcommittee that the administration feels the liability issue could be tied to the implementation legislation so long as it "does not impair prompt consideration and passage of the treaty implementation legislation."

Lehman said he does not believe that the treaties or the implementation legislation "affects the issue of liability for particular acts of copyright infringement." However, he said he is aware of the ISP's concern, called Coble's approach "fresh," and expressed hope that the bill would "be the basis for a constructive compromise."