In this article, it’s reported that Louis Vuitton – a fashion designer – has sued and won $32 million US from an ISP, Akanoc Solutions Inc, which hosted a customer who was selling forged Louis Vuitton products.

This has caused uproar in the ISP community as at first glance it appears as though the ISP in question is being held responsable for the acts of it’s customers, but really they are simply being held responsable for refusing to act against a customer who was involved in an illegal practice.

The court documents detail how Louis Vuitton notified the ISP no less than 15 times – giving them ample opportunity and evidence to terminate the customer. Instead the ISP allowed that customer to juggles his sites around on different domain names and IP addresses and continue to sell the fake goods. The ISP was found guilty because they were complacent in allowing a customer to use their service to break the law. They tried to claim safe harbour under the DMCA act, however here we are exactly 2 years after the initial filing and the websites listed in the initial claim are still operating in Akanoc IP space.

It’s a tricky line for ISPs to cross. In my day to day work, I receive notices of copyright infringement from the MPAA/RIAA every week – but how are we supposed to act? We do not have the technology to actively monitor accused customers as the equipment required ranges into the tens of thousands to the hundreds of thousands of dollars. The MPAA/RIAA provide scant evidence – evidence which has been shown in the past to be very, very incorrect at times. We do what we can under UK law, notify the customer that we have received an infringement notice and notify the MPAA/RIAA that the customer has been warned.

The UK government wants to make deep packet inspection boxes mandatory for all ISPs, without regard to the cost  (which will cripple any medium-to-small service provider, if not put them out of business) and on top of that they appear to think that these boxes can log everything and anything regardless of software or encryption – there isn’t a DPI box yet which can monitor Second Life traffic… but that’s what the UK government is expecting ISPs to do.

However, this is missing a key point in this case in California: The ISP in question was provided with verifiable evidence that thier customer was selling fake, knockoff and illegal goods – and they declined to act on it (and in fact are still declining to act upon it to this day). Other ISPs spend a great deal of time and money ensuring that they are reacting to spam issues and hacked servers being used to host fake paypal logins. Akanoc Solutions Inc. took an active decision in deciding to not enforce their rights to terminate an obviously fraudulent customer and allowed them to continue in their business. They deserve everything they got.

As I work in a ISP, I (unfortunately) have to deal with the abuse mailbox. And unfortuantely, these means responding to DMCA notices from US companies. How do you deal with a copyright infringement happening on your network, but when the holder is in the US and trying to apply US law?

DISCLAIMER: I am not a solicitor.

The US DMCA act allows a copyright holder to issue what is commonly known as a DMCA takedown notice. In some cases, such as MediaSentry, they’ll even try to insist that you completely disconnect the user.

Unfortunately (or fortunately) the US DMCA act cannot be enforced in the UK. So the actual notice and demand is completely invalid. Does that mean you can ignore it? No. The US company could still pursue damages in a US court and most likely win. Once they have a judgement against you, they could then bring it to the UK – and as an ISP, you don’t want that to happen.

I handle it by contacting the user directly, informing them that we have a alleged copyright infringement against them and that the need to cease and desist using any Bittorrent, Limewire, eDonkey or whatever their flavour of Peer-2-Peer software is. After that, the response I send to the copyright holder is as follows:

Please note that we are a UK company and under UK law the DMCA act does not have a equivelent provision. However, in the intrests of protecting your represented copyright holder we have acted upon this notice and the user identified by IP address xx.xx.xx.xx has been reprimanded.

Under section 35 of the UK Data Protection Act of 1998, we cannot provide any additional information unless presented with a certified UK court order.

This fulfills two things: It informs the US company that you can’t apply US law to a UK company. Secondly, it shows that you’re still willing to comply and help out to the best of your ability. Section 35 of the UK Data Protection Act is real, and states that you cannot give information about your customers to a third party with a court order (or subpeona, for those in the US).

Example DMCA Takedown Notice

abuse@xxxxxxx.uk

Sunday, June 01, 2008
[company]
[address]

RE: Unauthorized Distribution of the following media:
XXXXXXXX

Dear Abuse Department:

We are writing this letter on behalf of XXXXXX. No one is authorized to perform, exhibit, reproduce, transmit, or otherwise distribute the above-mentioned work without the express written permission of the copyright owner, permission which has not been granted to XX.XX.XX.XX.

We have received information that an individual has utilized the above-referenced IP address at the noted date and time to offer downloads of the above-mentioned work through a “peer-to-peer” service. The included documentation specifies the location on your network where the infringement occurred, as well as any other available identifying information. The distribution of unauthorized copies of copyrighted media constitutes copyright infringement under the Copyright Act, Title 17 United States Code Section 106(3). This conduct may also violate the laws of other countries, international law, and/or treaty obligations.

Since you own this IP address, we request that you immediately do the following:

1) Disable access to the individual who has engaged in the conduct described above; and
2) Terminate any and all accounts that this individual has through you.

On behalf of XXXXXX, the owner of the exclusive rights to the copyrighted material at issue in this notice, we hereby state, pursuant to the Digital Millennium Copyright Act, Title 17 United States Code Section 512, that we have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its respective agents, or the law. Also pursuant to the Digital Millennium Copyright Act, we hereby state that we believe the information in this notification is accurate, and, under penalty of perjury, that we are authorized to act on behalf of the owner of the exclusive rights being infringed as set forth in this notification.

Please contact us at the above listed address or by replying to this email should you have any questions. We appreciate your assistance and thank you for your cooperation in this matter. In your future correspondence with us, please refer to Case ID XXXXXXXXX. Your prompt response is requested.

Respectfully,

XXXXXXXX
SafeNet Enfocement Coordinator