<nettime> The Safe Harbor Question and The THING - New York Law Journal

["ricardo dominguez" <rdom@thing.net>]

Digital Copyright
Internet Service Provider May Be Forced to Shut Down

By Tamara Loomis
New York Law Journal

In the long-running comic book series, The Thing is a Fantastic Four
superhero with a rock body and amazing strength who can defeat any menace at
hand.

In its modern incarnation, The Thing is a New York City-based independent
Internet service provider. And in its current guise, The Thing may have met
its match in the Digital Millennium Copyright Act.

The Thing as service provider offers virtual community services -- Web
design, technical support and online service -- to city artists and
political activists. Clients range from such well-known institutions as P.S.
1 and Artforum magazine to hundreds of lesser-known New York City artists
and activists looking to connect with other like-minded people and promote
their work.

The non-profit company has been in business for over a decade. Yet in less
than six weeks, The Thing may be forced to shut its doors, kicked offline by
its service provider, Verio Inc., of Englewood, Co.

The Thing spokesman Brian Boucher said that Verio is terminating its
contract because of charges that one of The Thing's clients violated the
Digital Millennium Copyright Act (DMCA) and other trademark laws by putting
up a site parodying The Dow Chemical Company.

The site came to the attention of Dow's intellectual property lawyers,
Howard, Phillips & Andersen in Salt Lake City, who wrote Verio requesting
that it be shut down. Verio responded by disabling The Thing's entire
network until the site was removed the next day.

That should have been the end of it. But on Jan. 3, Verio senior counsel
Susan Gindin wrote a letter informing The Thing that its service would be
permanently suspended on March 14, 2003, "as a result of violations of
Verio's Acceptable Use Policy."

"It's a totally punitive measure against a small business that's not
profitable to them," Boucher said. "They're thinking, 'These guys are way
more trouble than they're worth.' "

Gindin declined to comment, referring inquiries to Verio's public relations
office, which did not respond with a statement by press time.

The Thing's difficulties started in early December when a loose-knit group
of political pranksters called the Yes Men incurred Dow's wrath by issuing a
phony press release purporting to be from the giant chemical company.

The release ridiculed Dow executives for caring more about profits than
cleaning up and compensating for the infamous toxic gas leak at a Union
Carbide plant in Bhopal, India, that killed thousands of people in 1984. Dow
now owns Union Carbide.

"We understand the anger and hurt," read the phony release, "But Dow does
not and cannot acknowledge responsibility." The Yes Men included a link to
their own www.Dow-Chemical.com site, designed to look much like the
company's real site at www.dow.com.

The Yes Men's parody was posted on the Internet on Dec. 3 by RTMark.com, an
arts activism group that gets its service from The Thing. Dow found out
about it that same day through reporters in Europe who contacted the company
for comments.

"We recognize that people have a right to criticize Dow and even make fun of
Dow," said Gregory D. Phillips, the lawyer who represented Dow in the
dispute. "What we find objectionable is people who use our trademark and
intellectual property to convey that criticism. When they do that it
confuses the public and damages Dow. That's why we asked Verio to pull the
site."

Verio attempted to contact The Thing, but it was after business hours and
the office was closed. So Verio simply pulled the plug on The Thing's entire
network, leaving 100 Web sites and 200 individual clients without service
for 16 hours.

Meanwhile, Dow managed to wrest the site away from the Yes Men, who had
outsmarted themselves by registering it under the name and address of James
Parker, son of Dow's chief executive. With the offending site disabled,
Verio restored The Thing's service.

But apparently Verio had had enough of The Thing. In a Dec. 13 telephone
conversation with The Thing founder Wolfgang Staehle, Verio told him that it
was terminating The Thing's contract, citing the DMCA, although the written
notice of termination that followed referred only to violations of Verio
policy.

Boucher said there had been only one other problem with Verio, in 1999, when
Verio shut down a portion of The Thing's network after the Electronic
Disturbance Theater, another Thing client, launched a denial-of-service
attack against eToys.

Safe Harbor

Jennifer Granick, director of the Stanford Center for Internet and Society,
which has taken The Thing's case, said she did not see a violation of Verio
policy, which includes safe harbor language that purports to exempt service
providers such as The Thing from policing the activities of their customers.

Granick explained that Verio's language tracks current law that gives broad
immunity to Internet service providers from the actions of their
subscribers.

In fact, the DMCA, the statute that Verio initially claimed The Thing
violated, includes just such a safe harbor provision, stating that if the
service provider follows certain procedures, it is not liable for the
content of its subscribers.

For Verio, that meant disabling The Thing's network in response to Dow's
notice, without having to investigate whether Dow's claims of infringement
had any merit.

As a result, "Dow can do an end run around making their case," said Jennifer
Urban, a professor at University of California at Berkeley School of Law.

She said the result was censorship: "[The safe harbor provision] is being
misused in order to chill free expression on the Internet."

On the flip side of the dilemma, Granick said that what has happened to The
Thing is a perfect example of the danger inherent in forcing ISPs to police
their customers. "This is exactly the type of thing that could put a small
ISP like The Thing out of business," she said.

Meanwhile, The Thing is looking to other local and European service
providers to replace Verio.

And Boucher, for one, is confident that The Thing will survive this current
crisis. He paraphrased Star Wars' Obi-wan Kenobi's warning to his enemy
Darth Vadar: "Strike me down and I shall become more powerful than you could
possibly imagine."

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