If ISPs are exposed to liability for forwarding others' messages--messages originating with other ISPs or with the ISP's own users--the norm of universal mutual message forwarding that underlies the present operation of the Internet will be threatened. This Note will argue that society presently confronts a choice between a common carrier Internet characterized by universal mutual message forwarding and a monitored and controlled Internet. Part I will describe the underlying rules that govern ISPs' liability for their users' actions. Part II will argue that the present statutory regime governing ISPs' liability for users' copyright infringement includes elements that provide ISPs with substantial protection for mutual message forwarding and that this regime relies on courts to characterize ISPs' activities to determine which liability standard applies. Part III will argue that courts have characterized one particular networking activity--participating in the Usenet message-forwarding system--inconsistently and that ISPs have not been able to predict the degree to which forwarding Usenet messages exposes them to liability. Part IV will argue that characterizing ISPs' activities so that ISPs are exposed to secondary liability, obliged to comply with section 512(h) subpoenas, and denied section 512(j)(2)'s limits on injunctive relief will undercut the norm of universal mutual message forwarding that allows Internet communication and urge courts to characterize ISP activity as transmission or routing protected by the section 512(a) safe harbor to avoid these negative effects.
From the Cluetrain to the Panopticon: ISP Activity Characterization and Control of Internet Communications,
Mich. Telecomm. & Tech. L. Rev.
Available at: http://repository.law.umich.edu/mttlr/vol10/iss2/4