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Anne of Many Titles,
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<div class="">I notice you didn’t provide any actual data to support your position. What, for example, outside of copyright violations, could ISPs conceivably be liable for? Present an argument to make your case. “No, because I’m a lawyer and you’re not” is
not an argument :)</div>
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<div class="">As clearly stated in DMC 512(a), the safe harbor provision for transitory transport, which is what Cloudfare provides, </div>
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<div class=""><i class="">"protects service providers who are passive conduits from liability for copyright infringement, even if infringing traffic passes through their networks. In other words, provided the infringing material is being transmitted at the
request of a third party to a designated recipient, is handled by an automated process without human intervention, is not modified in any way, and is only temporarily stored on the system, the service provider is not liable for the transmission.”</i> </div>
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<div class="">That’s not a law school student opinion. That’s the law itself. As I previously said, I’m not talking about the FCC definition of CC. Under DMCA, "<i class="">service providers who are passive conduits”
</i>are the essence of the common law definition of Common Carrier (<a href="https://en.wikipedia.org/wiki/Common_carrier" class="">https://en.wikipedia.org/wiki/Common_carrier</a>).</div>
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<div class=""> Incidentally, Network Neutrality wasn’t enacted until 2015, and classified ISPs as FCC CCs purely to bring them under regulation by the FCC. DMCA was passed in 1998, and Safe Harbor is based on the fact that ISPs are “passive conduits". NN has
nothing to do with the common carrier aspect of ISPs as "<i class="">service providers who are passive conduits”.</i> </div>
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<div class=""> -mel</div>
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<div class="">On Aug 5, 2019, at 9:41 AM, Anne P. Mitchell, Esq. <<a href="mailto:amitchell@isipp.com" class="">amitchell@isipp.com</a>> wrote:</div>
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<blockquote type="cite" class="">On Aug 5, 2019, at 10:02 AM, Mel Beckman <<a href="mailto:mel@beckman.org" class="">mel@beckman.org</a>> wrote:<br class="">
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Patrick,<br class="">
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You’re confusing the FCC’s definition of common carrier for telecom regulatory purposes, and the DMCA definition, which specifically grants ISPs protection from litigation through its Safe Harbor provision, as long as they operate as pure common carriers:<br class="">
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“Section 512(a) provides a safe harbor from liability for ISPs, provided that they operate their networks within certain statutory bounds, generally requiring the transmission of third-party information without interference, modification, storage, or selection.
[emphasis mine]<br class="">
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<a href="http://jolt.law.harvard.edu/articles/pdf/v27/27HarvJLTech257.pdf" class="">http://jolt.law.harvard.edu/articles/pdf/v27/27HarvJLTech257.pdf</a><br class="">
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-mel <br class="">
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Section 512(a) applies very specifically to the copyright infringement issue as addressed in the DMCA. While I don't disagree that this law school paper, written while Lovejoy was a law student, in 2013, could be read as if ISPs were common carriers, they
are not, and were not. Even if it were headed that way, actions by the current FTC and administration rolled back net neutrality efforts in 2017, four years after this student paper was published.<br class="">
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All that said, this is very arcane stuff, and ever-mutating, so it's not at all difficult to see why reasonable people can differ about the meanings of various things out there.
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Anne<br class="">
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Anne P. Mitchell, Attorney at Law<br class="">
CEO/President, Institute for Social Internet Public Policy<br class="">
Dean of Cybersecurity & Cyberlaw, Lincoln Law School of San Jose<br class="">
Author: Section 6 of the CAN-SPAM Act of 2003 (the Federal anti-spam law)<br class="">
Legislative Consultant<br class="">
GDPR, CCPA (CA) & CCDPA (CO) Compliance Consultant<br class="">
Board of Directors, Denver Internet Exchange<br class="">
Board of Directors, Asilomar Microcomputer Workshop<br class="">
Legal Counsel: The CyberGreen Institute<br class="">
Former Counsel: Mail Abuse Prevention System (MAPS)<br class="">
Member: California Bar Association<br class="">
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