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Evaluation of the Role of Access Providers Arno R. Lodder and Nicole S. van der Meulen Evaluation of the Role of Access Providers Discussion of Dutch Pirate Bay Case Law and Introducing Principles on Directness, Effectiveness, Costs, Relevance, and Time by Arno R. Lodder and Nicole S. van der Meulen, VU UniversityAmsterdam, Department Transnational Legal Studies Center for Law and Internet, Amsterdam, The Netherlands Abstract: Internet service providers (ISPs) play nography, etc. This expanding list necessitates a criti- a pivotal role in contemporary society because they cal assessment of the role of ISPs. This paper analyses provide access to the Internet. The primary task of ISPs the role of the access provider. Particular attention is – to blindly transfer information across the network – paid to Dutch case law, in which access providers were has recently come under pressure, as has their status forced to block The Pirate Bay. After analysing the posi- as neutral third parties. Both the public and the private tion of ISPs, we will define principles that can guide the sector have started to require ISPs to interfere with decisions of ISPs whether to take action after a request the content placed and transferred on the Internet as to block access based on directness, effectiveness, costs, well as access to it for a variety of purposes, including relevance and time. the fight against cybercrime, digital piracy, child por- Keywords: Internet Service Providers; Pirate Bay; Access Providers, Effectiveness; Costs; Relevance © 2012 Arno R. Lodder and Nicole S. van der Meulen Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Arno R. Lodder, Nicole S. van der Meulen, Evaluation of the Role of Access Providers Discussion of Dutch Pirate Bay Case Law and Introducing Principles on Directness, Effectiveness, Costs, Relevance, and Time, 4 JIPITEC 2, para 130. A. Introduction velopments led to a changing role for Internet ser- vice providers. No longer could they maintain a com- pletely neutral position. 1 Traditionally, third parties facilitating communica- tion and information exchange were mere messen- 3 The initial attempts to regulate ISPs, with the pro- gers or neutral transporters. As a popular Dutch say- minent examples of the US Digital Millennium Co- ing goes,1 their policy should be to not take notice pyright Act (DMCA)2 and the European Union Direc- of the content of messages. Postal services do not tive 2000/31/EC on electronic commerce (Directive open letters, telephone companies do not eavesdrop on E-commerce),3 reflected a new dual role of In- on communication, and even classic telephone ope- ternet intermediaries: they deserved protection as rators simply facilitated the connection. Only with neutrals, but they could also be called upon to as- some services is knowledge of the content inherent, sist with norm enforcement. The underlying reason as in the case of telegrams and telex. for these regulations, however, was primarily to de- fine exceptions or safe harbours that would protect 2 In the early days of the Internet, ISPs still fit into ISPs against liability claims. Nevertheless, these laws the tradition of communication neutrals. From the also acknowledged that, under certain circumstan- moment Internet access was provided to the gene- ces, ISPs should assist in stopping copyright infrin- ral public in the early 1990s, however, crime slowly gements, for example. started to take off, and copyright infringements in particular increased quite exponentially. These de- 4 130 2012 Evaluation of the Role of Access Providers 4 Both the DMCA and the Directive on E-commerce4 ISPs and others regarding hosted content.13 For the regulated three types of ISP services: the transport, present paper with its focus on access providers, this temporary storage, and hosting of information. In controversial and much-debated Act14 is not directly addition, the DMCA also regulated search engines. relevant. Presently, there is a tendency to put pressure on ISPs to co-operate in addressing norm violation, in 9 On December 1998 the DMCA entered into force. particular in their role as access provider. For in- This Act included in Title II the addition of para- stance, courts in several countries (Netherlands, Fin- graph 512 to the US Code, better known as the On- land,5 UK,6 etc.) ordered ISPs to filter Internet traffic; line Copyright Infringement Liability Limitation Act the French HADOPI Act has a so-called three-strike (OCILLA). OCILLA defines four categories of exemp- policy regarding downloading; and the controver- tions applicable to ISPs: services related to (1) infor- sial ACTA is infringing on human rights in a serious mation location tools (search engines), (2) storage of way.7 The secrecy surrounding this last initiative ad- information at the direction of users (hosting), (3) ded to the controversy regarding its content. Much system caching and (4) transitory communications.15 media attention was also paid to the US initiatives The transitory communications category is relevant SOPA and PIPA.8 These initiatives were abandoned for the present paper since it concerns ‘transmit- in February 2012, but by April 2012 the comparable ting, routing, or providing connections’. Whereas in CISPA had already passed in the House of Represen- doctrine, access providers are normally distinguis- tatives.9 Since the Senate did not accept the CISPA, hed as a special category of providers, in regulation it was re-entered and passed again in April 2013.10 this is not necessarily the case. Although all types of transitory communication providers are crucial to 5 Are the times changing? Are we entering a new era? a proper functioning of the Internet, the doctrinal This paper aims to answer this question by focusing treatment of access providers as a single category is the discussion on ISPs in their role as the access pro- understandable. For anyone on the Internet, it al- vider.11 The paper is structured as follows: In section ways starts with getting access. 2 the liability exemptions of the US DMCA and the EU Directive on E-commerce are introduced. Next, 10 Instead of enforcing norms on the Internet – regula- we will discuss a series of Dutch court cases concer- ting behaviour in cyberspace – it is sometimes easier ning The Pirate Bay that ended in 2012 with court to control at the source: make sure that people never orders against several ISPs to filter out websites be- get to (parts) of the Internet, or that people cannot longing to Pirate Bay. In the third part we will eva- use particular applications. As such, the ISP can func- luate which role fits access providers best. Viewed tion as a single point of contact for all of its users, from different angles, the access provider as the in- and these users are regulated at a single instance. termediary merely providing access to the Internet Access providers are the gate to the virtual world, will be weighed against the access provider as a full- and consequently are an obvious party to appoint time norm enforcer, and we will provide principles as norm enforcer or gate keeper. As Mann & Belzey that can help in striking a balance. state:16 ‘Internet intermediaries (…) are easy to iden- tify and have permanent commercial roots inside the jurisdictions that seek to regulate the Internet.’ B. Early days: DMCA and 11 As a shelter for such claims, the DMCA/OCILLA de- Directive on E-commerce termines that the transitory communication pro- vider is not liable if (1) the provider does not initi- 6 The spirit of the mid-1990s is well reflected by Kas- ate the access, (2) the process is automatic without 12 persen: ‘(…) the duties of access-providers do not selection of the material, (3) the provider does not embody anything else but giving access to the Net determine recipients, and (4) the information is not and all the information in it, just as it is’. modified. Besides these topics related to the core activity of an ISP, OCILLA sets two other conditions: 7 Stated simply, an access provider should just provide (5) providers should have a policy of account termi- access to the Internet. This basically was the back- nation of repeat infringers and (6) should not inter- ground of the legislation proposed during the late fere with technical measures (e.g. Digital Rights Ma- 1990s, although besides this main focus on creating nagement software). a safe harbour it was also acknowledged that under certain circumstances ISPs should assist in comba- 12 Access providers almost intrinsically satisfy all these ting (in particular copyright) infringements. conditions expect for the fifth. Basically, in a normal course of action, access providers cannot be held li- able as long as they define and apply a policy of ac- I. DMCA count termination. The above applies to monetary relief. There are some circumstances under which 8 Prior to the DMCA, in 1996 Section 230 of the Com- injunctive or other equitable relief is possible,17 and munications Decency Act regulated immunity for 4 131 2013 Arno R. Lodder and Nicole S. van der Meulen we will discuss them after introducing the E-com- the mere conduit of Article 12 regulates not only merce Directive. ‘the transmission in a communication network’ but also ‘the provision of access to a communication net- work’. The proposal also clearly indicates the dif- II. Directive 2000/31/ ferent scope depending on the provider’s role: ‘es- EC on E-commerce tablishes a “mere conduit” exemption and limits service provider’s liability for other “intermediary” activities’.24 13 The E-commerce Directive was drafted against a different background than the DMCA.
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