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DMCA Safe Harbors

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Citation Edit

Title II of the Digital Millennium Copyright Act (DMCA) of 1998, Pub. L. 105-304, 112 Stat. 2860 (1998).

Overview Edit

Online service providers (OSPs) and Internet service providers (ISPs) provide critical infrastructure support to the Internet, allowing millions of people to access online content and electronically communicate and interact with each other. The potential for Internet users to infringe copyrights online could expose service providers to claims of secondary copyright liability, such as contributory and vicarious copyright infringement. Concerned about potentially significant legal vulnerability of service providers, Congress passed the "Online Copyright Infringement Liability Limitation Act," Title II of the Digital Millennium Copyright Act (DMCA) of 1998, which created limitations on the liability of OSPs and ISPs for copyright infringement arising from their users' activities on their digital networks.[1]

Title II of the DMCA amended chapter 5 of the 1976 Copyright Act,[2] and created a new Section 512 to limit the liability of service providers for claims of copyright infringement relating to materials online. This safe harbor immunity is available only to parties that qualify as a "service provider" as defined by the DMCA, and only after the provider complies with certain eligibility requirements. In exchange for immunity from liability, the DMCA requires service providers to cooperate with copyright owners to address infringing activities conducted by the providers' customers.

Subsection 512(h) obligates service providers to divulge to copyright owners the identity of a subscriber suspected of copyright infringement. The subsection also provides a detailed procedure that a copyright owner must follow in order to obtain a subpoena from a federal court compelling the service provider to reveal the identity of the suspected infringing user.

[F]alling outside the safe harbors does not make you liable for infringement.[3] Compliance with the requirements of the safe harbors is optional for service providers, not mandatory. The increased certainty provided by the safe harbors, however, creates a strong incentive for service providers to take advantage of them, if it makes sense for their operation.[4]

Legislative History Edit

The Act's legislative history indicates that Congress wanted to provide service providers with "more certainty . . . in order to attract the substantial investments necessary to continue the expansion and upgrading of the Internet."[5] At the same time, Congress desired to preserve "strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment."[6] The DMCA therefore includes several conditions that the service provider must satisfy in order to qualify for protection from liability, and requires that the service providers’ activities be encompassed within one of four specified categories of conduct.[7] One federal district court assessed the “dual purpose and balance” of the DMCA in the following manner:

Congress . . . created tradeoffs within the DMCA: service providers would receive liability protections in exchange for assisting copyright owners in identifying and dealing with infringers who misuse the service providers' systems. At the same time, copyright owners would forgo pursuing service providers for the copyright infringement of their users, in exchange for assistance in identifying and acting against those infringers.[8]

Safe Harbor Provisions Edit

Limitations on liability, often called “safe harbors,” shelter service providers from copyright infringement suits. The DMCA’s safe harbor provisions, codified at 17 U.S.C. §512, do not confer absolute immunity, but they do greatly limit service providers’ liability based on the specific functions they perform.[9] The safe harbors correspond to four functional operations of a service provider:

  1. transitory digital network communications,
  2. system caching,
  3. storage of information on systems or networks at direction of users, and
  4. information location tools.[10]

Qualification for any one of these safe harbors is limited to the criteria detailed in each provision, and qualification under one safe harbor category does not affect the eligibility determination for any of the other three.[11]

§512(a) Transitory Digital Network Communications Edit

When a service provider acts as a data conduit at the request of a third party by “transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider,” it will be shielded from liability for copyright infringement.[12] This safe harbor also protects the service provider for any intermediate and transient storage of the material in the course of conveying the digital information. However, qualification for this safe harbor is subject to several conditions, including:[13]

  • Data transmission occurs through an automated technical process without selection of the material by the service provider.
  • The service provider does not determine the recipients of the material.
  • Intermediate or transient copies stored on the service provider’s system or network must not be accessible to anyone other than the designated recipients, and such copies must not be retained on the system longer than is reasonably necessary.
  • The service provider must not have modified the content of the transmitted material.

§512(b) System Caching Edit

The second safe harbor category limits ISP liability when its engages in “caching” of online content for purposes of improving network performance. Caching[14] helps to reduce the service provider’s network congestion and increase download speeds for subsequent requests for the same data. For example, subscribers to a service provider may transmit certain material to other users of the service provider’s system or network, at the direction of those users. The service provider may, via an automated process, retain copies of this material for a limited time “so that subsequent requests for the same material can be fulfilled by transmitting the retained copy, rather than retrieving the material from the original source on the network.”[15] Immunity for service providers that utilize system caching is provided on the condition that the ISP complies with the following:[16]

  • The content of cached material that is transmitted to subsequent users is not modified by the service provider.
  • The service provider complies with industry standard rules regarding the refreshing, reloading, or other updating of the cached material.
  • The service provider does not interfere with the ability of technology that returns “hit” count information that would otherwise have been collected had the website not been cached to the person who posted the material.
  • The service provider must impose the same conditions that the original poster of the material required for access, such as passwords or payment of a fee.
  • The service provider must remove or block access to any material that is posted without the copyright owner’s authorization, upon being notified that such material has been previously removed from the originating site, or that the copyright owner has obtained a court order for the material to be removed from the originating site or access to the material be disabled.

§512(c) Information Residing on Systems or Networks at the Direction of Users Edit

This safe harbor protects against copyright infringement claims due to storage of infringing material at the direction of a user on ISP systems or networks. Such storage includes “providing server space for a user’s website, for a chat room, or other forum in which material may be posted at the direction of users.”[17] The conditions placed on receiving the benefit of this safe harbor are as follows:[18]

Copyright owners must adhere to a prescribed procedure to inform the service provider’s designated agent of claimed infringement. To constitute effective notification, the copyright owner must “comply substantially” with the statutory requirements of 17 U.S.C. §512(c)(3):[21]

  • The notification is in writing, signed physically or electronically by a person authorized to act on behalf of the owner of the copyright allegedly infringed.
  • The notification identifies the material that is claimed to have been infringed and provides sufficient information allowing the service provider to locate the material.
  • The complaining party includes a statement, under penalty of perjury, that the party has a “good faith belief” that the use of the material is not authorized by the copyright owner, and that the information in the notification is accurate.

§512(d) Information Location Tools Edit

The fourth safe harbor classification immunizes service providers that provide users access to websites that contain infringing material by using “information location tools” such as hypertext links, indexes, and directories.[22] The conditions attached are substantially similar to those that apply to the “system storage” safe harbor provision discussed above, 17 U.S.C. §512(c), including lack of actual or constructive knowledge requirements, notice and take-down procedures, and absence of direct financial benefit.[23] The rationale for protecting service providers under this provision is to promote development of the search tools that make finding information possible on the Internet.[24] Without a safe harbor for providers of these tools, the human editors and cataloguers compiling Internet directories might be overly cautious for fear of being held liable for infringement.

Notice and Takedown Procedure Edit

One condition common to three of the four categories is the requirement that upon proper notification by the copyright owner of online material being displayed or transmitted without authorization, a service provider must “expeditiously” remove or disable access to the allegedly infringing material.[25] This “notice and takedown” obligation does not apply when the service provider functions as a passive conduit of information under §512(a), but is a condition that must be met to obtain shelter under the remaining three safe harbor provisions. As indicated by the eligibility conditions in each subsection of §512(b)-(d), the notice and takedown procedure varies slightly for each.

Eligibility Threshold for Safe Harbor Edit

For protection under any of the exemptions, a party must first meet the statutory definition of a “service provider.” The DMCA provides two distinct definitions, one applicable to the first provision and the second applicable to all of the others. Under §512(a), the transitory communications provision, “service provider” is narrowly defined as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”[26]

The remaining three subsections utilize a broader definition of “service provider,” applicable to “a provider of online services or network access, or the operator of facilities therefor.”[27] For example, this definition encompasses providers offering “Internet access, e-mail, chat room and web page hosting services."[28]

After a party qualifies as a service provider under one of the applicable definitions, there are still two additional threshold requirements that the service provider must satisfy:[29]

  1. The service provider must have adopted, reasonably implemented, and informed its users of a policy for the termination of the accounts of subscribers who are repeat copyright infringers.
  2. The service provider must accommodate and not interfere with “standard technical measures” that are used by copyright owners to identify or protect their works, such as digital watermarks or digital rights management technologies.

No Affirmative Duty to Police Infringing Activity Edit

Pursuant to 17 U.S.C. §512(m), the DMCA safe harbor provisions are not conditioned upon a service provider “monitoring its service or affirmatively seeking facts indicating infringing activity.”[30] One U.S. district court has noted that this provision of Section 512 “represents a legislative determination that copyright owners must themselves bear the burden of policing for infringing activityservice providers are under no such duty.”[31] Yet some legal commentators suggest that courts have nevertheless created a "back door" requirement for ISPs to police their systems in search of copyright infringement by strictly construing the Section 512(i) obligation to "implement" a repeat infringer termination policy as an affirmative duty to actively investigate potential infringement.[32] These judicial interpretations of the termination requirements in Section 512(i)(1)(A), discussed below, arguably may be contrary to Congress' intent in Section 512(m), as indicated in committee report language accompanying the DMCA legislation:

[T]he Committee does not intend this [termination] provision to undermine the principles of new subsection [m] . . . by suggesting that a provider must investigate possible infringements, monitor its service, or make difficult judgments as to whether conduct is or is not infringing. However, those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.[33]

Judicial Interpretation of the Safe Harbors Edit

Several cases have considered the safe harbor provisions to determine whether certain service providers met the statutory requirements for protection from copyright infringement claims. A survey of cases that have examined the safe harbor defense reveals that courts generally have been cautious in permitting liability limitation to service providers, closely scrutinizing compliance with the safe harbor eligibility conditions on the part of both copyright owners and service providers.

Safe Harbor Denied Edit

In two copyright infringement cases involving peer-to-peer file-sharing services, A&M Records. Inc. v. Napster, Inc.[34] and In re Aimster Copyright Litigation,[35] the courts denied safe harbor protection to the companies Napster and Aimster, on the ground that those companies did not meet the eligibility requirements specified by the DMCA. Both of these companies operated peer-to-peer networking services that facilitated sharing over the Internet of music files stored on their userscomputer hard drives. Using peer-to-peer software offered by Napster and Aimster, MP3 song files — the majority of which were unauthorized for distribution by their copyright owners — were uploaded and downloaded freely and repeatedly to the consternation of the music recording industry.

Napster asserted that its operations were protected by the §512(a) safe harbor provision, claiming that it offered the “transmission, routing, or providing of connections for digital online communications.”[36] The district court in Napster found that the infringing material was exchanged over the Internet, not through Napster’s servers, and therefore Napster did not provide connections “through” its system.[37] On the basis of this determination, the court ruled that Napster had failed to demonstrate that it qualified for the §512(a) safe harbor.

In addition, the court noted that even if Napster had met the criteria in §512(a), it did not satisfy the eligibility requirements in §512(i), in particular the termination policy provision. The court found that the plaintiffs in the case had raised “genuine issues of material fact about whether Napster ha[d] reasonably implemented a policy of terminating repeat infringers” when it introduced evidence that Napster had not adopted a formal termination policy until two months after the filing of the lawsuit against it.[38] This belated attempt to adopt a termination policy would have prevented Napster from seeking liability protection under any of the four safe harbors.

The Ninth Circuit Court of Appeals in Napster rejected “a blanket conclusion that §512 of the [DMCA] will never protect secondary infringers,” but commented that the “plaintiffs raise serious questions regarding Napster’s ability to obtain shelter under §512.”[39] The significant questions included whether Napster would be eligible for safe harbor under §512(d), the information location tools provision, whether copyright owners must give service providers “official” notice pursuant to §512(c)(3) in order for the provider to have knowledge of infringement on its system, and whether Napster had in fact complied with the termination policy requirement of §512(i)(1)(A).[40] Nevertheless, until these issues could be addressed at trial, the district court’s approval of a preliminary injunction against Napster was appropriate because the plaintiffs had “demonstrate[d] that the balance of hardships tips in their favor.”[41]

In a lawsuit similar to Napster, record company and music publishing plaintiffs charged the peer-to-peer file-sharing service, Aimster, with contributory and vicarious infringement of copyrights held by the plaintiffs. In addition to distributing file-sharing software, Aimster provided online tutorials on its website which "methodically demonstrated how to transfer and copy copyrighted works over the Aimster system."[42] In addition, the Aimster software allowed users to encrypt all the file exchanges, a scheme that effectively prevented Aimster from gaining knowledge of the type of content being transferred.

Unlike Napster, Aimster had adopted atermination policy for repeat infringers before a lawsuit was filed against it. However, the district court in Aimster found that the termination policy could not be implemented in reality because the encryption technology provided by Aimster made it impossible to determine which users were transferring copyrighted files.[43] The court thus found Aimster ineligible for any safe harbor protections because its repeat infringer policy did not meet the requirement of § 512(i)(1)(A).[44] In upholding the district court’s preliminary injunction, the Seventh Circuit Court of Appeals noted:

The DMCA provides a series of safe harbors for Internet service providers and related entities, but none in which Aimster can moor. . . . The common element of [the DMCA's safe harbors is that the service provider must do what it can reasonably be asked to do to prevent the use of its service by

"repeat infringers." Far from doing anything to discourage repeat infringers of the plaintiffs’ copyrights, Aimster invited them to do so, showed them how they could do so with ease using its system, and by teaching its users how to encrypt their unlawful distribution of copyrighted materials disabled itself from doing anything to prevent infringement.[45]

In ALS Scan, Inc. v. RemarQ Communities, Inc.,[46] the Fourth Circuit Court of Appeals considered whether an ISP is eligible for protection when it is alerted to infringing activity by “imperfect notice” that does not strictly comply with the notification procedures specified in § 512(c)(3). ALS Scan holds the copyrights to over 10,000 “adult” photographs which were posted on newsgroups that were operated by the service provider RemarQ Communities. Upon discovering that RemarQ’s servers contained infringing material, ALS Scan sent a “cease and desist” letter to RemarQ, requesting deletion of two specific newsgroups that contained the photographs. However, the district court in ALS Scan found that the notice was “fatally defective” in complying with §512(c)(3) because ALS Scan never provided RemarQ with a “representative list” of the infringing photographs. Nor did it identify the pornographic photographs with “sufficient detail” to enable RemarQ to locate and disable access to them.[47]

In reversing the district court's ruling granting summary judgment in favor of RemarQ, the court of appeals held that ALS Scan had “substantially complied” with DMCA notification requirements because its notice letter identified by name the two RemarQ newsgroup sites “created solely for the purpose of publishing and exchanging ALS Scan’s copyrighted images” and also referred RemarQ to website addresses where RemarQ could find pictures and names of ALS Scan’s adult models.[48] Thus, the court of appeals held that since RemarQ was provided with a notice that substantially complied with the DMCA, the service provider could not rely on a claim of defective notice to maintain the safe harbor defense.[49]

Safe Harbor Allowed Edit

In contrast to the ALS Scan court’s determination of the consequences of “imperfect notice,” the court in Hendrickson v. Ebay, Inc.[50] found that the defective notice supplied by the plaintiff in its case failed to comply substantially with §512(c)(3)’s notification requirement. In Hendrickson, the Internet auction service eBay was allegedly offering for sale pirated DVD copies of a documentary about the life of Charles Manson called “Manson.” Prior to filing suit, plaintiff Robert Hendrickson sent a letter to eBay demanding that the auction site cease and desist “from any and all further conduct considered an infringement(s) of [plaintiff’s] right.”[51] eBay responded promptly to this letter, informing Hendrickson of its termination policy for repeat infringers and requesting that the plaintiff submit proper notice under the DMCA by providing more detailed information regarding the alleged infringing items, including identifying the specific eBay item numbers corresponding to the copies of “Manson” for sale.[52]

The plaintiff refused to provide this information and proceeded to file copyright infringement suits against eBay. At trial, Hendrickson did “not dispute that he has not strictly complied with Section 512(c)(3).”[53] The district court instead considered whether the plaintiff’s imperfect notice satisfied the DMCA’s “substantial” compliance requirement. The court noted that Hendrickson did not include in his notice a written statement attesting to the good faith and accuracy of his infringement claim, as required by 17 U.S.C. §512(c)(3)(A)(v)-(vi).[54] In addition, the plaintiff failed to provide eBay with sufficient information to allow the service provider to identify the auction listings that allegedly offered pirated copies of “Manson” for sale. This failure further rendered Hendrickson’s notice improper under the DMCA.[55] Therefore, the court ruled, eBay was under no obligation to remove the allegedly infringing material on its system.[56] The court went on to consider eBay’s eligibility for safe harbor under Section 512(c), and determined that it satisfied all the statutory conditions. The DMCA thus having shielded eBay from liability, the court granted eBay summary judgment on the copyright infringement claim.[57]

Ellison v. Robertson is another case that granted safe harbor to the defendant service provider.[58] Without authorization by the copyright owner, Stephen Robertson electronically scanned and converted into digital files several science fiction novels written by Harlan Ellison. Robertson then uploaded and copied the files onto USENET newsgroups that are carried by several ISPs, including American Online, Inc. (AOL). AOL’s retention policy provided that USENET messages containing binary files remain stored on the company’s servers for fourteen days.[59] Once Ellison learned of the infringing activity, he directed his legal counsel to e-mail a notice of copyright infringement pursuant to the DMCA notification procedures.

AOL, however, claimed never to have received the notice. Receiving no response, the plaintiff then filed a contributory copyright infringement suit against AOL and other parties. The Ellison court found that AOL’s failure to receive the plaintiff’s e-mail notification was due to its own fault in not promptly updating its “designated agent” contact e-mail address with the Copyright Office.[60] Due to this error, the e-mail sent by the plaintiff was routed to a defunct e-mail account. The court refused to permit AOL to disclaim knowledge of the infringement[61] on account of its own carelessness: “If AOL could avoid the knowledge requirement through this oversight or deliberate action, then it would encourage other ISPs to remain willfully ignorant in order to avoid contributory copyright infringement liability.”[62]

After finding a triable issue of fact as to AOL’s liability for contributory copyright infringement, the Ellison court proceeded to consider AOL’s safe harbor defenses. As a threshold determination, the court held that AOL had complied with Section 512(i) in adopting and implementing a termination policy for repeat infringers. Despite the plaintiff’s argument that no AOL user has ever been terminated for being a repeat infringer and therefore AOL’s termination policy was inadequate, the court referred to the legislative history of the DMCA to find that §512(i) “does not require AOL to actually terminate repeat infringers” but rather “requires AOL to put its users on notice that they face a realistic threat of having their Internet access terminated if they repeatedly violate intellectual property rights.”[63]

The Ellison court then examined AOL’s claim to safe harbor under both §512(a), the transitory digital network communications subsection, and §512(c), information residing on systems or networks at direction of users. The court found that AOL’s fourteen-day retention of Robertson’s posts on its USENET servers “constitute[d] ‘intermediate and transient storage’ that was not ‘maintained on the system or network . . . for a longer period than [was] reasonably necessary for the transmission, routing or provision of connections.”[64] The court was satisfied that AOL met the remaining criteria under §512(a).[65] Emphasizing that §512(n) explicitly provides that each of the four safe harbors “describe separate and distinct functions for purposes of applying this section [§512],” the court did not feel the need to analyze AOL’s §512(c) eligibility.[66] Once the Ellison court found that AOL qualified for a §512(a) liability limitation defense, it granted summary judgment for the service provider.

Subpoena to Identify Infringer Edit

The subpoena provision contained in Title II of the DMCA, codified at 17 U.S.C. §512(h), has received increased attention as a result of the Recording Industry Association of America (RIAA)’s highly publicized efforts to take legal action against individual computer users who use peer-to-peer software to share copyrighted music files. A critical component of these actions is identification of the computer user. Upon request by a copyright owner, the clerk of any U.S. district court “shall expeditiously issue” a subpoena to a service provider for disclosure of “information sufficient to identify the alleged infringer of the [copyrighted] material.”[67] The clerk’s issuance of the subpoena depends on the filing of the specified information in the subpoena request:[68]

  • A copy of the notification of claimed infringement sent to the service provider. This notification must comply substantially with the notice requirement described in §512(c)(3)(A).
  • A proposed subpoena indicating the information that is sought.
  • “A sworn declaration” that the subpoena is sought solely to obtain information revealing the identity of the alleged infringer and that the information will only be used to protect rights under the Copyright Act.

Upon receiving the subpoena, a service provider “shall expeditiously disclose” to the copyright holder the information required by the subpoena.[69] Congress intended this rapid subpoena process to be “a ministerial function performed quickly”by the clerk of a court in order to identify copyright infringers and stop the infringing activities.[70] Indeed, Congress’ intent is expressly reflected in the statutory language itself, where the word “expeditiously” appears twice in the subpoena procedure section.

In re Verizon Edit

In two court proceedings occurring within months of each other, the RIAA sought to enforce DMCA subpoenas served on Verizon Internet Services after Verizon refused to comply with them.[71] These subpoenas requested the identities of subscribers to Verizon’s Internet access service who were allegedly sharing hundreds of copyrighted songs using peer-to-peer file transfer software. Verizon argued in the first case that the subpoena was inapplicable because the allegedly infringing material was not stored on Verizon-owned servers, but rather on its subscribers’ computers.[72] In the second, Verizon moved to quash the subpoena, challenging the DMCA subpoena authority as a violation of its subscribers’ First Amendment right to anonymous speech.[73]

The U.S. district court ruled against Verizon in both cases, finding that subpoena authority extended to all types of service providers within the scope of the DMCA, not just providers that stored information on a system or network,[74] and that the DMCA subpoena power was constitutional.[75] Verizon requested a stay of the lower court’s order pending appeal, but the U.S. Court of Appeals for the District of Columbia denied the request.[76] A day later, Verizon revealed the names of four subscribers suspected of copyright infringement.[77]

The federal district court in In re Verizon Internet Services, Inc., determined that the §512(h) subpoena process “provide[s] substantial protection to service providers and their customers against overly aggressive copyright owners and unwarranted subpoenas.”[78] In particular, it noted that the DMCA “provides disincentives for false representations under the Act, making it costly for anyone to seek a subpoena on the basis of intentional misrepresentations, and thereby further ensuring that subpoenas will only be used in circumstances of good faith allegations of copyright infringement.”[79]

Three months later, the court upheld the constitutionality of the DMCA’s subpoena provision in another proceeding against Verizon, stating that the “DMCA contains adequate safeguards to ensure that the First Amendment rights of Internet users will not be curtailed.”[80] The court, in dicta, claimed that owing to built-in safeguards, “it is unlikely that §512(h) will require disclosure, to any significant degree, of the identity of individuals engaged in protected anonymous speech, as opposed to those engaged in unprotected copyright infringement.”[81] The court explained that “[w]hatever marginal impact the DMCA subpoena authority may have on the expressive or anonymity rights of Internet users . . . is vastly outweighed by the extent of copyright infringement over the Internet through peer-to-peer file sharing, which is the context of the legitimate sweep of §512(h).”[82]

Following the district court’s determination of the DMCA subpoena power’s legality, the RIAA obtained over 800 subpoenas compelling several major ISPs and some universities to provide the names of computer users suspected of swapping copyrighted music files, with approximately 75 new subpoenas being approved every day.[83]

RIAA v. Verizon Edit

On December 19, 2003, the U.S. Court of Appeals for the D.C. Circuit handed down its opinion reversing the district court’s decisions upholding the RIAA subpoenas.[84] The reversal was predicated on the court’s findings that under §512 a subpoena may be issued only to an ISP engaged in storing material that is infringing or the subject of infringing activity on its servers — not to an ISP acting as a passive [[conduit] for data transferred between two Internet users. And, an ISP acting as a conduit for P2P file sharing does not involve the storage of infringing material on the ISP’s server.

The court rested its decision on a technical interpretation of §512(h) and the overall structure of §512. Examining closely the cross-references of subsection (h), it noted that one of the required elements in the subpoena application is that the copyright owner identifies “the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material[.]"[85] The court agreed with Verizon that it is impossible to comply with this requirement when an ISP is acting as a mere conduit because

[n]o matter what information the copyright owner may provide, the ISP can neither “remove”’ nor “disable access to” the infringing material because that material is not stored on the ISP’s servers. Verizon can not remove or disable one user’s access to infringing material resident on another user’s computer because Verizon does not control the content on its subscriber’s computers.[86]

The court rejected the RIAA’s contention that an ISP could “disable access” by terminating the infringer’s account with the ISP. Blocking access to infringing material and terminating an ISP’s user account are separate remedies elsewhere under Section 512.[87] “Notice and take down” requirements of Section 512(b)-(d), that is, disabling access to infringing material, apply to ISPs when they are storing infringing material — either as a temporary cache of a web page, as a web site stored in the ISP’s server, or as an information locating tool hosted by an ISP,[88] but not when it is routing infringing material to or from a personal computer owned and used by a subscriber.[89]

The court reasoned that the reference to “disabling access” for purposes of issuing a subpoena is distinct from terminating service. Thus, because the ISP does not have access to material residing on a user’s computer, it cannot disable access to it by others. Examining the overall structure of the statute, the court concluded that “[t]he presence in §512(h) of three separate references to §512(c) and the absence of any reference to §512(a) suggests the subpoena power of §512(h) applies only to ISPs engaged in storing copyrighted material and not to those engaged solely in transmitting it on behalf of others.”[90]

The court was sympathetic to the RIAA’s concerns regarding the widespread infringement of its members’ copyrights and their need for legal tools to combat it. But it would not “rewrite” the DMCA to address those concerns. That prerogative rests squarely with the Congress.

References Edit

  1. The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary, at 8 (Dec. 1998) (hereinafter Copyright Summary].
  2. 17 U.S.C. §501 et seq.
  3. "The failure of a service provider's conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider's conduct is not infringing under this title or any other defense." 17 U.S.C. §512(l). See also Perfect 10 v. CCBill, 488 F.3d 1102, 1109 (9th Cir. 2007) (full-text) ("These safe harbors limit liability but 'do not affect the question of ultimate liability under the various doctrines of direct, vicarious, and contributory liability.'")
  4. Open Wifi and Copyright: A Primer for Network Operators, at 6.
  5. 144 Cong. Rec. S11,889 (daily ed. Oct. 2, 1998) (statement of Sen. Hatch).
  6. H.R. Rep. 105-796, 105 Cong., 2d Sess. 72 (1998).
  7. Id. at 73.
  8. In re Verizon Internet Servs., Inc., 240 F. Supp.2d 24, 37 (D.D.C.), rev'd sub nom. Recording Industry Ass'n of America v. Verizon Internet Servs., 351 F.3d 1229 (D.C. Cir. 2003).
  9. Ellison v. Robertson, 189 F.Supp.2d 1051, 1064 (C.D. Cal. 2002).
  10. 17 U.S.C. §512(a)-(d).
  11. Id. §512(n).
  12. Id. §512(a).
  13. Id.
  14. Caching is defined as “intermediate and temporary storage of material on a system or network operated by the service provider.” 17 U.S.C. §512(b).
  15. Copyright Summary, at 10.
  16. 17 U.S.C. §512(b)(2)(A)-(E).
  17. H.R. Rep. 105-551, pt. 2, 105th Cong., 2nd Sess. 53 (1998).
  18. 17 U.S.C. §512(c).
  19. Id. §512(c)(1)(A)(ii).
  20. “The Register of Copyrights is directed to maintain a directory of designated agents available for inspection by the public, both on the web site of the Library of Congress, and in hard copy format on file at the Copyright Office.” H.R. Rep. 105-551, pt. 2 at 55.
  21. 17 U.S.C. §512(c)(3)(A)(i)-(vi).
  22. Id. § 512(d).
  23. Id. §512(d)(1)-(3).
  24. H.R. Rep. 105-551, pt. 2 at 58.
  25. See 17 U.S.C. §512(b)(E), (c)(C), and (d)(3).
  26. Id. §512(k)(1)(A).
  27. Id. §512(k)(1)(B).
  28. H.R. Conf. Rep. No. 105-551, pt. 2 at 64.
  29. 17 U.S.C. §512(i)(1)(A)-(B).
  30. 17 U.S.C. §512(m)(1).
  31. In re Aimster Copyright Litigation, 252 F.Supp.2d 634, 657 (N.D. Ill. 2002), aff'd, 334 F.3d 643, 67 U.S.P.Q.2d (BNA) 1233 (7th Cir. 2003).
  32. See, e.g., Jennifer Bretan, Harboring Doubts About the Efficacy of §512 Immunity Under the DMCA, 18 Berkeley Tech. L.J. 43, 51-54 (2003).
  33. H.R. Rep. 105-551, pt. 2 at 61.
  34. 239 F.3d 1004 (9th Cir. 2001).
  35. 252 F.Supp.2d 634, 648 (N.D. Ill. 2002), aff’d, 334 F.3d 643 (7th Cir. 2003).
  36. A&M Records, Inc. v. Napster, Inc., 2000 WL 573136, at *3 (N.D. Cal. May 12, 2000).
  37. Id. at *8. The court stated, “Napster enables or facilitates the initiation of connections, but these connections do not pass through the system within the meaning of subsection 512(a).”
  38. Id. at *9-*10.
  39. Napster, 239 F.3d at 1025.
  40. Id.
  41. Id.
  42. Aimster, 252 F.Supp.2d at 643.
  43. Id. at 659. (Emphasis in original.)
  44. Id.
  45. Aimster, 334 F.3d at 655.
  46. 239 F.3d 619, 620 (4th Cir. 2001).
  47. ALS Scan, 239 F.3d at 624.
  48. Id. at 624-25. The court further explained, “[W]hen a letter provides notice equivalent to a list of representative works that can be easily identified by the service provider, the notice substantially complies with the notification requirements.” Id. at 625.
  49. Id. at 620. (Emphasis in original.)
  50. 165 F.Supp.2d 1082 (C.D. Cal. 2001).
  51. Id. at 1085.
  52. Id.
  53. Id. at 1089.
  54. Id. at 1089-90.
  55. Id. at 1090-92.
  56. “[T]he service provider’s duty to act is triggered only upon receipt of proper notice.” Id. at 1089.
  57. Id. at 1094.
  58. Ellison, 189 F.Supp.2d 1051 (C.D. Cal. 2002).
  59. 189 F.Supp.2d at 1054.
  60. Id. at 1058. As discussed above, 17 U.S.C. §512(c)(2) requires service providers to designate an agent to receive notifications of claimed infringement and provide the contact information for this agent to the Copyright Office. The record showed that AOL had changed its contact e-mail address from “copyright@aol.com” to “aolcopyright@aol.com” in fall 1999, but waited until April 2000 to notify the Copyright Office of the change.
  61. To be held liable for contributory copyright infringement, a court must find that the party, “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996).
  62. Ellison, 189 F.Supp.2d at 1058.
  63. Id. at 1065-66. (The court referred to H.R. Rep. 105-551, pt. 2 at 61.)
  64. Id. at 1070.
  65. Id. at 1071-72.
  66. Id. at 1072, citing 17 U.S.C. §512(n).
  67. 17 U.S.C. §512(h)(3)-(4).
  68. Id. §512(h)(2)(A)-(C). In addition to these conditions placed on obtaining a subpoena, id. §512(h)(6) provides another safeguard against abuse of subpoena power: subpoenas are subject to the provisions of the Federal Rules of Civil Procedure that govern the issuance, service, and enforcement of subpoenas. For example, under Fed.R.Civ.P. 45, service providers or their Internet users may object to, modify, or move to quash a subpoena.
  69. 17 U.S.C. §512(h)(5).
  70. H.R. Conf. Rep. No. 105-551, pt. 2, at 61.
  71. In re Verizon Internet Servs., Inc., 240 F.Supp.2d 24, 37 (D.D.C.), rev’d sub nom. Recording Industry Ass'n of America v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003); In re Verizon Internet Servs., Inc., 257 F.Supp.2d 244 (D.D.C.), rev’d sub nom. Recording Industry Ass'n of America v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003).
  72. Verizon, 240 F. Supp.2d at 28-29.
  73. Verizon, 257 F. Supp.2d at 247.
  74. Verizon, 240 F.Supp.2d at 26.
  75. Verizon, 257 F. Supp.2d at 275.
  76. 2003 WL 21384617 (D.C.Cir. June 4, 2003).
  77. See Christopher Stern, Verizon Identifies Download Suspects, Wash. Post, June 6, 2003, at E05.
  78. 240 F.Supp.2d at 40-41.
  79. Id. at 41 n.14. See also 17 U.S.C. §512(f): “Any person who knowingly misrepresents . . . that material or activity is infringing . . . shall be liable for any damages, including costs and attorneys fees. . . .”
  80. Verizon, 257 F.Supp.2d at 260-61.
  81. Id. at 263.
  82. Id. at 265-66.
  83. See Ted Bridis, RIAA’s Subpoena Onslaught Aimed at Illegal File Sharing, Wash. Post, July 19, 2003, at E01.
  84. Recording Industry Ass'n of America v. Verizon Internet Services, 351 F.3d 1229 (D.C. Cir. 2003).
  85. 17 U.S.C. §512(c)(3)(A)(iii) as referred to in subsection (h)(2)(A).
  86. RIAA v. Verizon, 351 F.3d at 1235.
  87. Cf. 17 U.S.C. §512(j)(1)(A)(i) with (j)(1)(A)(ii). These provisions set forth separate remedies available under an injunction to remedy copyright infringement. Specifically, blocking access to infringing material and terminating a subscriber’s account.
  88. Id. §512(b)-(d).
  89. Id. §512(a).
  90. RIAA v. Verizon, 351 F.3d 1229 (D.C. Cir. 2003).

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