A talk delivered at the WIPO Asia-Pacific Regional Symposium On Copyright Related Aspects Of Information And Communication Technologies (ICT) held in Hanoi, Viet Nam between July 29 to 31, 2009.

1. What are Internet Intermediaries
and their various types?
Shane Coughlan
Consultant, Opendawn
Asia Representative, OpenForum Europe
Contributor, FSFE Legal Department

2. An intermediary facilitates transactions

3. In traditional economics, an intermediary
was a conduit for services offered by
suppliers to consumers

4. There were rules for how these transactions
worked and where responsibility lay

5. Such regulation provides confidence by
creating certainty in transactions

6. If correctly applied

7. Internet intermediaries are a conduit
for data shared among parties

8. We are still working out how
they should be regulated

9. The question is who or what precisely
is an Internet intermediary?

10. In the early days of the Internet,
intermediaries were identified as ISPs

11. ISPs were gateways that could
regulate data flow in the network

12. It had to be decided how much responsibility
ISPs had for the data content

13. ISPs argued that phone companies are not
liable for the content of telephone calls, and
that they were in a similar position regarding
data content

14. In the US, lawmakers agreed with this
concept and granted near immunity to
Internet intermediaries

15. However, other types of Internet
intermediary like eBay were able to
seek protection under this law

16. That indicated that the real issue
is a broader question

17. The Internet has everything from
file-sharing to linking to (re)publication

18. We need to re-think what an Internet
intermediary is and our policies towards them

19. The Internet creates
intermediaries everywhere

20. An ISP can provide access to the Internet

21. A search engine can provide the results
displayed when seeking information

22. A financial institute can provide monetary
transactions between third-parties

23. A social network can provide access to
individuals

24. An individual can provide access to other
people's creative content

25. There are many ISPs, search engines,
financial institutions and social networks

26. There are hundreds of millions of individuals

27. “The question is no longer who is an
intermediary, but rather who isn't”
Michael Geist

28. In a centralized market there are
gateways to mediate transactions

29. In a decentralized market buyers
and sellers interact directly

30. The Internet has a vast number of gateways
across many legal jurisdictions

31. It has so many options for creating
transactions it is in effect decentralized

32. The intermediaries can take almost any form

33. Who is liable for the data transactions?

34. Who bears responsibility in a network where
everyone can have any role?

35. Allocating responsibility appears daunting

36. We can draw a line between passive
intermediaries and those with responsibility
for data in the network

37. This is the difference between providing
access to the Internet and directly providing a
link to illegal data

38. Remedies for actively (re)distributing
illegal data already exist

39. For material covered by copyright,
patents or trademarks international
treaties assist in regulation

40. It is more complex for jurisdictional
issues like the limits of free speech

41. Some intermediaries like search engines
attempt to implement jurisdictional specific
(self)regulation to address this

42. Jurisdictional (self)regulation can lead to
legitimate data being suppressed

43. We need to create more international treaties
regarding what should and should not be
regulated to address this

44. We are not living in a world of
producers and consumers anymore

45. On the Internet everyone can have any role

46. Our challenge is to address this strange and
wonderful new world where one person or
organization can be a producer, intermediary
and consumer at the same time

47. “We're at the dawn of a new technology
[…] we've built this space ship but we
really don't know where it will take us.”
Kent Walker, General Counsel, Google

48. References
http://www.wipo.int/meetings/en/2005/wipo_iis/index.html
http://www.nytimes.com/2008/11/30/magazine/30google-t.html?_r=1&pagewanted=1
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=696601
http://www.minterellison.com/public/connect/Internet/Home/Legal+Insights/Newsletters/Previous+Newsletters/A-A-
Liability+for+internet+intermediaries
http://www.citmedialaw.org/blog/2008/sam-bayard/role-internet-intermediaries-censoring-online-speech
http://www.michaelgeist.ca/content/view/213/159/
http://www.infolets.com/952892211/addPostingForm
http://www.internationaltaxreview.com/?Page=9&PUBID=210&ISS=25285&SID=717179
http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1.1.39.5779
http://www.webmasterworld.com/forum81/743.htm
http://www.grahamjones.co.uk/blog/web-business/internet-intermediaries-face-uncertain-future.html
http://econpapers.repec.org/paper/wpawuwpio/0409005.htm
http://en.wikipedia.org/wiki/Supply_chain_management
http://en.wikipedia.org/wiki/Intermediary