I've been reading about ISP liability lately - going over some of
green_amber's writing on the current situation and thinking about what would be a decent solution. The problem is this:
If your ISP is hosting something which is somehow illegal (defamatory, obscene, breaking copyright, etc.) then there are three broad methods of dealing with this:
1) Decide that the ISP isn't liable - the user themselves are liable. Despite it being on the ISP's webspace, it's space that's leased out to the user and therefore they are responsible for removing it and for any damages.
The problem with this is that it can be very hard to track down an individual user and it can take long periods of time to move things through the courts to get something taken down.
2) Hold the ISP responsible - after all, it's on their space, they're effectively publishing it, therefore they hold responsibility for it being there (in addition to the user, of course).
The problem with this approach is that ISPs don't have anywhere near the manpower necessary to look at every item they host. It also makes them into defacto censors of the internet, despite their likely lack of legal knowledge. Imagine if every corner shop was responsible for the contents of every newspaper they sold - nobody would be willing to sell newspapers at all.
3) Waive the responsibility of the ISP, so long as they respond to a 'take-down' notice in a prompt manner - so if they're told that a user is hosting child-porn on their site, they have to remove it at once in order to avoid responsibility.
This is the most common compromise - ISPs get treated as 'common carriers' like the telephone company - not responsible for what they transmit. However, the problem is that issuing a take-down notice is very easy to do and can be done for simple nuisance value. In
one experiment researchers put a copy of On Liberty by John Mills (quite horrendously far out of copyright) online and then sent letters of complaint to the ISP. The site got taken down.
The problem being - ISPs are not experts in what is legal content and what isn't. If they get a take-down notice, knowing that they will be held responsible for the content if they don't take it down, the safest thing for them to do is to simple take it down and then wait for the space-renter to complain to them.
Having thought about this (and argued with
green_amber about it) for some time it seems to me that the most obvious answer is to take the decision away from ISPs entirely. If a newspaper is going to publish something and someone wants to stop them - they get an injunction from a court. If a book is published containing libel, you go through a court to claim damages from the author/publisher/etc. What's needed is a central, governmental body which can make decisions that have legal backing.
If a content-owner wants content to be removed, they would contact this centralised body and say "The page at address XXX violates our copyright as shown in an attachment/at address YYY." The centralised body would make a decision, attempt to contact the person who is in violation and then issue a take-down order themselves. The ISP would not have to do anything unless told to do so by the centralised body, in which case they would have to act immediately. The centralised body would have the resources to do the job properly (probably paid for through a levy on each ISP that would be less than each one paying for their own IP lawyers).
The
Internet Watch Foundation does something like this at the moment for child pornography in the UK, but it seems obvious to me that this needs to be extended to other areas of illegality if we're going to be removed from the current mess of contrasting interests.