Challenges for Copyright by ICT: Internet Service Providers

ISPs (Internet Service Providers) (and to a certain extent also telecom operators) are involved in the copyright debate primarily because of their role in the transmission and storage of digital information. Problems arise particularly concerning caching, information residing on systems or networks of ISPs at the directions of users and transitory communication.

Caching

Caching it is argued could cause damage because the copies in the cache are not necessarily the most current ones and the delivery of outdated information to users could deprive website operators of accurate "hit" information (information about the number of requests for a particular material on a website) from which advertising revenue is frequently calculated. Similarly harms such as defamation or infringement that existed on the original page may propagate for years until flushed from each cache where they have been replicated.

Although different concepts, similar issues to caching arise with mirroring (establishing an identical copy of a website on a different server), archiving (providing a historical repository for information, such as with newsgroups and mailing lists), and full-text indexing (the copying of a document for loading into a full-text or nearly full-text database which is searchable for keywords or concepts).

Under a literal reading of some copyright laws caching constitutes an infringement of copyright. Yet recent legislation like the DMCA or the proposed EU Directive on copyright and related rights in the information society (amended version) have provided exceptions for ISPs concerning particular acts of reproduction that are considered technical copies (caching). Nevertheless the exemption of liability for ISPs only applies if they meet a variety of specific conditions. In the course of the debate about caching also suggestions have been made to subject it to an implied license or fair use defense or make it (at least theoretically) actionable.

Information Residing on Systems or Networks at the Direction of Users

ISPs may be confronted with problems if infringing material on websites (of users) is hosted on their systems. Although some copyright laws like the DMCA provide for limitations on the liability of ISPs if certain conditions are met, it is yet unclear if ISPs should generally be accountable for the storage of infringing material (even if they do not have actual knowledge) or exceptions be established under specific circumstances.

Transitory Communication

In the course of transmitting digital information from one point on a network to another ISPs act as a data conduit. If a user requests information ISPs engage in the transmission, providing of a connection, or routing thereof. In the case of a person sending infringing material over a network, and the ISP merely providing facilities for the transmission it is widely held that they should not be liable for infringement. Yet some copyright laws like the DMCA provide for a limitation (which also covers the intermediate and transient copies that are made automatically in the operation of a network) of liability only if the ISPs activities meet certain conditions.

For more information on copyright (intellectual property) related problems of ISPs (BBSs (Bulletin Board Service Operators), systems operators and other service providers) see:

Harrington, Mark E.: On-line Copyright Infringement Liability for Internet Service Providers: Context, Cases & Recently Enacted Legislation. In: Intellectual Property and Technology Forum. June 4, 1999.

Teran, G.: Who is Vulnerable to Suit? ISP Liability for Copyright Infringement. November 2, 1999.

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Conservative Think Tanks and the Media

Given the growing political importance of media most think tanks - especially conservative ones in the U.S. - have clearly stated the need for strong marketing and communications. The former president of the American Enterprise Institute, William Baroody puts it that way "We pay as much attention to the dissemination of the product as we do to the content. ... We hire ghost writers for scholars to produce op-ed articles that are sent to the one hundred and one co-operating newspapers three pieces every two weeks ... The real test is getting your message out. ... Market your policy recommendations, market the principles and values behind them, market the tangible publications and events your organization is producing. Market the think tank concept itself. Then market your specific organization."

Relations with the media form one of the most important element within the think tanks marketing strategies. The Hoover Institution's public affairs office, for example, links to 900 media centers across the U.S. and 450 abroad. The Reason Foundation, a strong fighter for privatization, had 359 television and radio appearances in 1995 and more than 1,500 citations in national newspapers and magazines. Furthermore the Manhattan Institute has held more than 600 forums on briefings for journalists and policy makers on a broad range of public policy issues.

Not to leave the distribution of their respective ideologies to chance, conservative institutions have created a variety of conservative-controlled media outlets and projects, as well as television and radio broadcasting networks. The Free Congress Foundation for instance, in addition to its National Empowerment Television, publishes NetNewsNow, a broadcast fax letter sent to more than 400 U.S. radio producers. Conservative foundations also spent US$ 2,734,263 on four right-of -center magazines between 1990 and 1993, providing publishing opportunities for conservative thinkers and policy advocates.

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Reason Foundation

The Reason Foundation was created as "a think tank for liberty." Its initial mission was to publish a national magazine on current issues (Reason magazine) and to conduct conferences and seminars on classical-liberal ideas. Over time, its mission has broadened to include public policy research, via the Reason Public Policy Institute division. The Foundation is now a national research and educational organization that explores and promotes the twin values of rationality and freedom as the basic underpinnings of a good society. The Foundation supports the rule of law, private property, and limited government, and promotes voluntarism and individual responsibility in social and economic interactions, relying on choice and competition to achieve the best outcomes.

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