Digital Copyright
Internet Service Provider May Be Forced to Shut Down
By Tamara Loomis
Thursday, January 30, 2003, 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."