IP: AOP stance on SPA ISP code

[Dave Farber <farber () cis upenn edu>]

This was sent to about 1,000 members of the Association of
Online Professionals (AOP). 



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AOP Legal Issues Alert              Thursday, November 7, 1996
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Please give the following the widest possible distribution:


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SPA "ISP Code Of Conduct"
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Recently, as part of its efforts to fight software piracy on
the Internet, the Software Publishers Association created an
"ISP Code of Conduct" and has asked many ISPs to sign and
return a copy to the SPA.


WHILE THE FINAL DECISION RESTS WITH YOU, AOP STRONGLY RECOMMENDS THAT
YOU NOT SIGN THIS DOCUMENT UNDER ANY CIRCUMSTANCES.


The "Code" presents a position that the SPA would like to have
written into the law when Congress reviews copyright law next
year.


Signature of this "Code" would mean that you voluntarily accept
burdens and obligations that are not required under any existing
copyright laws. Specifically, you would agree to appoint a
"compliance officer" whose job would be to ensure:


o That the unauthorized reproduction and/or distribution of
  copyrighted computer programs does not occur on or through your
  servers, a job that would require active monitoring of not only your
  subscribers but all Internet traffic through your servers.
o That information that appears to have been posted to be used to
  circumvent manufacturer-installed copy-protect devices in
  computer programs, including, but not limited to, serial numbers and
  cracker utilities, not be posted on your servers, another commitment
  that will require the active monitoring of subscribers.
o That the linking of one or more sites on your servers to other
  sites that contain pirated computer programs and/or cracker
  material does not take place unless such linking clearly appears to
  be intended for lawful purposes.  This commitment requires you make
  a legal determination of the intent of your subscribers, and to
  monitor their activities in posting links from their web sites.


Your agreement to this program, and signature of this document, could
be used by the SPA to show support among ISPs for legislation that
would specifically make you liable for the acts of your subscribers.
It could also be used to support legislation that would require you to
monitor all of the acts of your subscribers and any other information
that passes through your servers.


In short, agreement to the SPA "Code" could significantly increase
your administrative burden, require that you accept the role of
"software policeman" for the entire Internet, accept responsibility
for the acts of others over which you have no control, and help the
SPA pave the way for legislation that would make you legally liable in
court for failure to comply with one or another of the impossible
requirements of the SPA Code.


AOP and its members have always voiced support for the rights of
copyright holders.  Article VI of the AOP Code of Professional
Standards already addresses the obligations of ISPs with regard to
intellectual property:


"VI.  Members shall respect the rights of the owners of
      intellectual properties, including software authors, providing
      proper diligence and reasonable effort to prevent the
      infringement of copyrights, patents and other protections."


If you determine or receive notification that a subscriber to your
system is making infringing material available through your server, it
would be prudent to remove the allegedly infringing material from your
system as expeditiously as possible after you receive such
notification.  In addition, you are strongly encouraged to terminate
the access of any subscriber who is a repeat infringer of copyright
law.


If you find yourself facing an action with regard to alleged
copyright infringement, particularly "contributory copyright
infringement", please notify the AOP immediately so that we can review
your situation and provide you with appropriate support and/or legal
defense resources.


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Dave McClure                       (703) 924-9692   (703) 924-9594 Fax
Executive Director                 (703) 264-1750 BBS   Telnet aop.org
Assn of Online Professionals       http://www.aop.org     info () aop org
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