Liability Limits online maint uses

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Acts for the Millenium: Part 2

DMCA: Limitations of Liability for ISP's

Background: Many courts have given gray and differing views of the liability of ISPs for "contributory" and "vicarious" copyright infringement for posting or "caching" infringing and defamatory copies of works on their servers and services. These Act sections add limits on when these necessary services are and are not infringing. If an ISP does not profit from and does not know or participate in the infringing activity it has a "safe harbor" to avoid liability.

Likewise it has been frustrating for many copyright owners who see their materials stolen by a third person and posted by an ISP online to track the pirate down and prosecute. Now they can have the ISP remove the infringing items, and the ISP is not liable. All of this depends on proper ISP registration and properly worded notice sent to the ISP's designated agent.

ISP RIGHTS: In many cases courts have generally held that it was not their liability for a third person posting portions of a religious copyrighted text online; it was another ISP’s liability for a third person posting defamatory materials on its service because one ISP's policy was to undertake editorial filtering. It was not an famous ISP’s liability when third persons posted playboy’s photos on sites hosted by it as ISP. These and other somewhat unpredictable cases lead the U.S. Congress to revise or amend certain provisions of the Copyright Act. 17 U.S.C. Sec 512 is NEW and fostered by Internet uses.

New Copyright Act Section 512. TRANSITORY DIGITAL NETWORK COMMUNICATIONS "A service provider shall not be liable for monetary relief, or, …for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—

"(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
"(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
"(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
"(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
"(5) the material is transmitted through the system or network without modification of its content."

Likewise There are similar limitations for liability from "System Caching"

Provided that:

`(A) the material is made available online by a person other than the service provider,
`(B) the material is transmitted from the person described in subparagraph (A) [other than the ISP] through the system or network to a person other than the person described in subparagraph (A) [not the ISP] at the direction of that other person, and
`(C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A),
AND IF: the following conditions are met:

the material [cached by a third person is transmitted] to the subsequent users without modification to its content,
the service provider … complies with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online in accordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available…. only if those rules are not used by the person …to prevent or unreasonably impair the intermediate storage,
The ISP does not interfere with the ability of technology associated with the material to return to the person the data and
If the person [who put the cached data on the ISP] has in effect a condition that a person must meet prior to having access to the material, such as a condition based on payment of a fee or provision of a password or other information, the service provider permits access to the stored material in significant part only to users of its system or network that have met those conditions…"
LIMITATIONS ON ISP LIABILITY FOR INFORMATION RESIDING ON SYSTEMS OR NETWORKS AT DIRECTION OF USERS- covers no monetary relief, or injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider— under many conditions about what degree of knowledge the ISP may have had....

AND the ISP does not receive a financial benefit directly attributable to the infringing activity, in a case in which the ISP has the right and ability to control such activity; and upon notification of claimed infringement, responds expeditiously to remove or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

NEXT: ISP RIGHTS PART 3: REGISTRATION AND NOTICE.

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