Evaluation of the Role of Access Providers Discussion of Dutch Pirate Bay Case Law and Introducing Principles on Directness, Effectiveness, Costs, Relevance, and Time

• Author: Arno R. Lodder - Nicole S. van der Meule
• Position: VU UniversityAmsterdam, Department Transnational Legal Studies Center for Law and Internet, Amsterdam, The Netherlands
• Pages: 130-141

2012

Arno R. Lodder and Nicole S. van der Meulen

130

4

Evaluation of the Role of Access Providers

Discussion of Dutch Pirate Bay Case Law and Introducing

Principles on Directness, Effectiveness, Costs, Relevance, and

Time

by Arno R. Lodder and Nicole S. van der Meulen, VU UniversityAmsterdam, Department Transnational Legal

Studies Center for Law and Internet, Amsterdam, The Netherlands

© 2012 Arno R. Lodder and Nicole S. van der Meulen

Everybody may disseminate this ar ticle by electronic m eans and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtained a t http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Arno R . Lodder, Nicole S. van der Meulen, Evaluation of the Ro le of Access Providers Discussion of

Dutch Pirate Bay Case Law a nd Introducing Principles on Directness, Effe ctiveness, Costs, Relevance, and T ime, 4 JIPITEC 2,

para 130.

Keywords: Internet Service Providers; Pirate Bay; Access Providers, Effectiveness; Costs; Relevance

Abstract: Internet service providers (ISPs) play

a pivotal role in contemporary society because they

provide access to the Internet. The primary task of ISPs

– to blindly transfer information across the network –

has recently come under pressure, as has their status

as neutral third parties. Both the public and the private

sector have started to require ISPs to interfere with

the content placed and transferred on the Internet as

well as access to it for a variety of purposes, including

    -

nography, etc. This expanding list necessitates a criti-

cal assessment of the role of ISPs. This paper analyses

the role of the access provider. Particular attention is

paid to Dutch case law, in which access providers were

forced to block The Pirate Bay. After analysing the posi-



decisions of ISPs whether to take action after a request

to block access based on directness, effectiveness, costs,

relevance and time.

A. Introduction

1 Traditionally, third parties facilitating communica-

tion and information exchange were mere messen-

gers or neutral transporters. As a popular Dutch say-

ing goes,1 their policy should be to not take notice

of the content of messages. Postal services do not

open letters, telephone companies do not eavesdrop

on communication, and even classic telephone ope-

rators simply facilitated the connection. Only with

some services is knowledge of the content inherent,

as in the case of telegrams and telex.

2

     

the tradition of communication neutrals. From the

moment Internet access was provided to the gene-

ral public in the early 1990s, however, crime slowly

started to take off, and copyright infringements in

particular increased quite exponentially. These de-

velopments led to a changing role for Internet ser-

vice providers. No longer could they maintain a com-

pletely neutral position.

3 The initial attempts to regulate ISPs, with the pro-

minent examples of the US Digital Millennium Co-

pyright Act (DMCA)2 and the European Union Direc-

tive 2000/31/EC on electronic commerce (Directive

on E-commerce),

3

   -

ternet intermediaries: they deserved protection as

neutrals, but they could also be called upon to as-

sist with norm enforcement. The underlying reason

for these regulations, however, was primarily to de-



ISPs against liability claims. Nevertheless, these laws

also acknowledged that, under certain circumstan-

ces, ISPs should assist in stopping copyright infrin-

gements, for example.