From nanog-bounces+bonomi=mail.r-bonomi.com@nanog.org Sat Sep 25 17:00:42 2010
Date: Sun, 26 Sep 2010 00:01:38 +0200
From: Jeroen Massar <jeroen@unfix.org>
To: Valdis.Kletnieks@vt.edu
Subject: Re: Online games stealing your bandwidth
Cc: NANOG <nanog@merit.edu>
>
>> Was anything ever standardised in that field? I imagine with much of
>> P2P traffic being (how shall I put this...) less than legal, it's of
>> questionable legality and the ISPs would not want to be held liable
>> for the content cached there?
>
> The ISP is off the hook on that one. 17 USC 512(2) specifically carves out an ISP
> safe-harbor for data that's only cached on an ISP's servers due to an end
> user's request. IANAL, so have somebody you pay for legal advice read 17 USC 512(2)
> and tell you what they think.
So it that is true, if you define "news server" as a "cache", even
though you have to buy several terabytes, make that several petabytes,
to "be able to "cache" this data one along with all the network
environment to support getting data out of this "cache", the ISP is
completely in the clear even though that "cache" is the sole single
point where one can retrieve that "cached" data from even years after
the data was originally put on the network, the original is gone and
that "cache" works without anything being attached to it ? 
There is existant _recent case law, specifically with regard to operating
a newsserver, that holds otherwise. Of course the server operator was
blatently _advertizing_ the copyright-infringing (and more) nature of
their content.
Several of the major ISPs who recently discontinued providing USENET did
so as a direct result of the above-mentioned case -- attorney-generals
were 'making noises' -- and the ISP chose not to risk a confrontation.
> So it that is true, if you define "news server" as a "cache", even
> though you have to buy several terabytes, make that several petabytes,
> to "be able to "cache" this data one along with all the network
> environment to support getting data out of this "cache", the ISP is
> completely in the clear even though that "cache" is the sole single
> point where one can retrieve that "cached" data from even years after
> the data was originally put on the network, the original is gone and
> that "cache" works without anything being attached to it ?
"sole single point" is a sticking point, since at that point you've crossed
over from "cache" to "archive" - see below.
There is existant _recent case law, specifically with regard to operating
a newsserver, that holds otherwise. Of course the server operator was
blatently _advertizing_ the copyright-infringing (and more) nature of
their content.
Haven't read that case law yes, but I'm willing to guess the operator of the
newsserver was running it in violation of 17 USC 512 (b)(2)(E)(i) - which
basically says you need to respond to takedown requests if the upstream copy
has already been removed (which will often be the case with netnews). So if
you're the sole single point caching something that's now gone from upstream,
you have a problem (and a stale cache). But of course, we all run technically
competent caches that expire stuff when it goes stale (unless your business
model includes advertising you have a stale cache)...
The *real* fun for Bittorrent is (b)(2)(E)(ii): "The party giving the
notification includes in the notification a statement confirming that the
material has been removed from the originating site or access to it has been
disabled or that a court has ordered that the material be removed from the
originating site or that access to the material on the originating site be
disabled." - which could be difficult to do when the material has been
assembled block-by-block from dozens of other sources and few records kept of
the actual provenance of any given block. They might have to resort to finding
a helpful judge willing to sign a "John Doe" order for each takedown.