Tuesday, December 30, 2008

Should ISPs be Compensated for Responding to RIAA Notices?

Following on my earlier post about the RIAA's apparent decision to move to a "three-strikes" approach to copyright enforcement comes this report of a small ISP that responds to music industry disconnect demands by asking for a billing address. It seems that copyright owners are not terribly interested in paying ISPs for the time and trouble it takes to disable an account.

In the view of this ISP, if the RIAA is going to expect ISPs to act as its enforcement arm, then it's reasonable for ISPs to expect to be compensated in return. At some level, this makes sense; courts impose filing fees on plaintiffs, and given that the RIAA's three-strikes policy will shortcut many of the legal procedures that slow enforcement, perhaps it's time for ISPs and the RIAA to agree on a sensible schedule for dealing with enforcement demands.

On the other hand, resisting enforcement until the bill is paid does not appear to be covered by the DMCA. Under the DMCA's Safe-Harbor provisions for ISPs, an ISP that receives proper notice of an alleged infringement is required to "respond[] expeditiously" to remove or disable access to the offending material. Assuming that the takedown request complies with the level of specificity required by the DMCA, the question is whether an ISP is responding "expeditiously" if it demands compensation before it acts.

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